PITTSBURGH (KDKA) – Texting and driving is illegal in Pennsylvania. Drivers can face fines or even jail time if they’re texting and cause a serious or fatal accident.

But now, there’s also a question if the sender of the text can be held liable if the driver they message causes an accident.

In what’s believed to be a first of its kind lawsuit in Pennsylvania, a family is suing both the driver and the man who texted her after Daniel Gallatin was killed by the distracted driver.

In May 2013, Gallatin was on his motorcycle on his way to visit his daughter when he was hit and dragged by an SUV. State Police quickly learned that the driver, Laura Gargiulo, had received a text just moments before the crash.

“This wasn’t an accident. This could have been prevented. Accidents can’t be prevented,” said Daniel’s daughter, Michelle.

According to court papers filed by state police investigators, the text read, “16 hr day. I don’t get off till 5am. hun.”

It was later discovered that the text was sent by Timothy Fend.

“I got the chills thinking about it. It just ticks us off.” Daniel’s widow, Mary Lou, said.

She still has few words to describe how reading that text made her feel.

“Pointless. Absolutely pointless,” she said.

After the criminal case was resolved, the Gallatin family sought legal advice from Dallas W. Hartman P.C., Attorneys at Law. Attorney Doug Olcott is overseeing the case and said there is a heavy burden of proof to show that a text sender should be held liable.

Olcott told KDKA’s Heather Abraham, “Shouldn’t we be allowed to at least say, did they know? Is there any liability there?”

Olcott describes it like holding a bar or bartender accountable for overserving.

“There’s nothing wrong with a bartender serving somebody, but there comes a point in time when a line gets crossed,” said Olcott. “It certainly doesn’t relieve the drunk person involved in the accident. In our case, it doesn’t relieve the person who chose to view the text. All we’re saying is there may be other people who bear responsibility, Olcott said.

Olcott thought when they filed the suit, they were on the cutting edge of a new aiding and abetting concept lawsuit. Through their research though, they learned that there was a similar case in New Jersey.

In that accident, a young man was accused of texting back and forth with his girlfriend when he crashed into another vehicle, injuring the couple who were in it.

The lawsuit went to the Superior Court, where a judge suggested that the sender of a text can be liable if they know or have reason to know that the receiver of the message is behind the wheel.

Olcott says that lawsuit set precedence and was what ultimately convinced Lawrence County Judge John Hodge to allow the Gallatins to proceed with their lawsuit.

Olcott says they are still in the discovery phase of the lawsuit after the judge’s recent decision. What they know is that at least one text was sent to Gargiulo. Olcott says the next steps will include trying to determine if there were additional messages and if Fend had reason to believe Gargiulo was driving at the time.

“This case, the Gallatins, they fully understand that as we go through the civil case, it may very well turn out that Mr. Fend didn’t have any knowledge, or didn’t have any reason to believe that the text he sent would have resulted in Mrs. Gargiulo opening it up,” Olcott explained.

The case is not without criticism. Michelle Gallatin-Baughman says her family has already had people question why they’re doing this.

“I’m sure there will be a lot of negative comments, but all I have to say about that is you haven’t walked in my shoes,” she said.

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Heather Abraham