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Case Bulletin – Trial Court Denies Request for Dismissal Filed by Third-Party “Texter” Who Allegedly Texted Defendant-Driver

In the case of Gallatin v. Gargiulo, et. al., Plaintiff filed a Complaint arising out a motor vehicle/motorcycle accident which resulted in the death of Daniel E. Gallatin. In the Complaint, Plaintiff alleges that Defendant-Driver, Gargiulo, was text messaging on her cell phone at the time that the accident occurred. Plaintiff further alleges that the Defendant-Driver was responding to a text message that was sent to her by either Joseph M. Gargiulo or Defendant Timothy Fend (and that they knew or should have known she was driving). Counsel for the “sender” Defendants (J. Gargiulo and Fend) filed Preliminary Objections in the nature of a demurrer setting forth the argument that the pleading against both of them was legally insufficient.


Defendants argued that there is no statute or case law which imposes liability against a person who sends a text message to a person operating a motor vehicle. The Court recognized that there was no information regarding the number of text messages sent or whether they in fact knew that she was driving at the time. The trial court in Lawrence County relying upon § 876 of the Restatement of the Restatement of Torts (Second) (third party can be liable if he/she encourages another in violating a duty) coupled with a New Jersey case which suggests that a sender of a text message can be held liable in this same scenario, was enough for the trial court to deny their Preliminary Objections seeking dismissal.