Monday, April 24, 2017

The Lawyer, His Business Associate and the Email

This post examines a recent opinion from the U.S. Court of Appeals for the 3rd Circuit: In re Grand Jury Matter #3, 847 F.3d 157 (2017). The court begins the opinion by explaining that
[t]his appeal presents an unusual question of appellate jurisdiction: May we continue to exercise jurisdiction over an appeal of an evidentiary ruling in a grand jury proceeding even after the grand jury has returned both an indictment and a superseding indictment? We conclude that, so long as the grand jury investigation continues, we retain jurisdiction and thus can resolve the controversy.
With jurisdiction, we turn to an important question involving the limits of the exception to the confidentiality normally afforded to attorney work product. It loses protection from disclosure when it is used to further a fraud (hence the carve-out is called the crime-fraud exception). The District Court stripped an attorney's work product of confidentiality based on evidence suggesting only that the client had thought about using that product to facilitate a fraud, not that the client had actually done so. 
In re Grand Jury Matter #3, supra.
The opinion goes on to explain that
Company A, John Doe, his lawyer, and Doe's business associate are the subjects of an ongoing grand jury investigation into an allegedly fraudulent business scheme. After the Government obtained access to an email Doe claims was privileged, it asked the District Court for permission to present it to the grand jury. The Court granted permission, finding that, although the email was protected by the work-product privilege, the crime-fraud exception to that privilege applied. Doe then filed an interlocutory appeal, requesting that our Court reverse the District Court's order.

While the appeal was pending, the grand jury viewed the email in question. It then indicted, his lawyer, and Doe's business associate for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (`RICO’), conspiracy to commit fraud, mail fraud, wire fraud, and money laundering. Thereafter the grand jury was discharged and a new grand jury was empaneled. It too saw the disputed email, and in December 2016 returned a superseding indictment that did not contain new charges but revisions to the previous ones. The grand jury investigation, however, continues still. What follows fleshes out this factual and procedural backdrop.
In re Grand Jury Matter #3, supra.
The court goes on to explain that
Doe was the sole owner of Company A and its president. Nonetheless a November 2008 document purports to memorialize Doe's sale of 100% of the shares of Company A to Company B for $10,000. Doe's business associate is the sole owner of Company B. Following this purchase agreement, Doe claims that the business associate engaged Doe to be responsible for Company A's day-to-day operations. However, numerous filings and tax documents suggested that Doe maintained control and ownership of Company A evenafter Doe's stock in it was purportedly transferred.

Over the last decade and a half multiple individuals have sued Doe and his businesses in state courts around the country based on Doe's business practices. One such lawsuit was a class action filed against Company A in Indiana state court. In it the plaintiffs alleged that Company A's business practices violated various Indiana state laws. They sought to hold Doe accountable for these violations. However, during this litigation Doe stated in a deposition in 2014 that he had transferred ownership of Company A to Company B. Doe's business associate then represented that Company A was no longer in business and had limited assets. Shortly after Doe's deposition, the Indiana plaintiffs settled their claims for approximately $260,000, about 10% of the value attorneys for the plaintiffs had put on them.
Thereafter the Government empaneled a grand jury to investigate Doe and his business associate. Its theory is that Doe owned Company A but tricked the plaintiffs into thinking that he had sold it to his business associate to encourage the plaintiffs to settle for a lower value. This relies on the premise that Doe has deep pockets but his business associate does not.
In re Grand Jury Matter #3, supra.
The opinion then explains how, and why, the case arose:
In the course of its investigation, the grand jury subpoenaed Doe's accountant requesting that he provide the Government with Doe's personal and corporate tax returns. Among other things, these tax documents revealed that Doe had claimed 100% ownership of Company A every tax year from 2008 through 2012. The accountant also told an IRS agent that, at some time in 2013, Doe's lawyer informed him that Doe had sold Company A in 2008. He also informed investigators that he might have taken notes on this conversation. The Government requested them, and the accountant's attorney sent the Government three documents.

One of the documents was an email Doe had sent to the accountant on July 16, 2013, forwarding an email that Doe's lawyer had sent to Doe four days earlier that referenced an ongoing litigation. The attorney email advises Doe of the steps he needed to take to correct his records so that they reflect that the business associate, not Doe, owned Company A since 2008. When Doe forwarded this email to his accountant, he simply wrote: `Please see the seventh paragraph down re; my tax returns. Then we can discuss this.’ There is no evidence that Doe ever amended his returns or did anything else, apart from forwarding the email, to follow up on his attorney's advice. Indeed, the accountant's recollection is that Doe's attorney later said not to go through with the amendments by telling the accountant to `stand by’ for further guidance. It never came.

The day after the accountant provided this email to the Government, the accountant's attorney sought to recall it on the ground that it was privileged and had been inadvertently included in his client's production. The accountant's counsel, however, also told the Government that his client believed the email was asking the accountant to perform an accounting service, not a legal service. The Government argued that under these circumstances Doe waived any privilege that might have otherwise attached to his lawyer's email. It did, however, temporarily refrain from presenting it to the grand jury and asked the District Court in January 2015 for permission to do so, which Doe opposed.

The Court ruled in the Government's favor. Its rationale was that Doe did not forward the email to his accountant to seek legal advice. Lacking that precondition, no attorney-client privilege attached to the document. However, the Court did find that the attorney work-product privilege attached to the email because the accountant could not be considered an adversary. It then concluded that the crime-fraud exception to the work-product privilege applied. On this basis, the Government could present the email to the grand jury.
In re Grand Jury Matter #3, supra.
This section of the opinion goes on to explain that
[i]mmediately after the District Court made its decision, Doe filed an interlocutory appeal requesting that we reverse its order. As noted above, while the appeal to our Court was pending the grand jury saw the email and later returned a 17–count indictment charging Doe, his lawyer, and Doe's business associate with RICO conspiracy, conspiracy to commit fraud, mail fraud, wire fraud, and money laundering.
In re Grand Jury Matter #3, supra.
The government argued that the court should not
exercise jurisdiction because the first grand jury returned an indictment and the succeeding grand jury returned a superseding indictment.

The grand jury proceedings have yet to conclude, however. On at least two occasions we have continued to exercise jurisdiction even after grand juries returned indictments. In the first case, the Government appealed an adverse ruling on a grand jury subpoena. At the outset of the appeal, our jurisdiction was clear because Congress had specifically given the Government the right to seek immediate review. See In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1040 (3d Cir. 1980) (citing 18 U.S.C. § 3731). As the appeal was pending, however, the grand jury returned an indictment. We nonetheless concluded that, as long as the indictment did not render the appeal moot, we had jurisdiction to reach the merits. Because in that case the indictment `did not bring the grand jury's proceedings to [their] conclusion,’ a live controversy remained and our jurisdiction was intact. Id.

In re Grand Jury Matter #3, supra. The opinion goes on to explain that because, in another, similar case in which the issue related to “the still-ongoing review of his emails (thus giving us a live controversy), we continued to exercise jurisdiction . . . even after the indictment. Id.
In re Grand Jury Matter #3, supra.
The Court of Appeals went on to explain that
[w]hen we are able to dismiss an appeal for lack of jurisdiction as soon as it is filed, the process continues uninterrupted in the trial court, and we are able to wait until all the appellate issues are wrapped up after a final judgment. But because in limited circumstances we take pre-indictment appeals and begin to decide them, we should not reflexively dismiss those appeals—wasting the parties' effort as well as ours—simply because an indictment is filed. Instead, if grand jury proceedings continue, we may still exercise jurisdiction in order to remedy future harm. Consider our case, which has been on our docket since June 2015. By the time Doe was indicted nearly ten months had passed, and the parties had fully briefed the case and presented oral arguments to us. If we then send the case back to the District Court on the rationale that our jurisdiction was pulled by the indictment, we would do so with it likely that the issue would return if there is a conviction. And if Doe is convicted and files an appeal, the parties will need to re-brief and re-argue the same issue that we could have resolved already. Thus in cases where we accept an appeal when it is filed, efficiency favors finishing what we started. 
In re Grand Jury Matter #3, supra.
The court went on to explain that
[h]aving concluded that our appellate jurisdiction continues, we now address the merits and hold that the crime-fraud exception to the attorney work-product doctrine does not apply to the email at issue. One of the exception's two requirements—the use of the communication in furtherance of a fraud—is lacking. The use-in-furtherance requirement provides a key safeguard against intrusion into the attorney-client relationship, and we are concerned that contrary reasoning erodes that protection.

Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe's lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure `promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.’ Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1428 (3d Cir. 1991). Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe's case against those suing him. See id.
In re Grand Jury Matter #3, supra.
The opinion goes on to explain that
[y]et work-product protection, though fundamental to the proper functioning of the legal system, is not absolute. As relevant here, the crime-fraud exception operates to prevent the perversion of the attorney-client relationship. It does so by allowing disclosure of certain communications that would otherwise be confidential. `[A] party seeking to apply the crime-fraud exception must demonstrate that there is a reasonable basis to suspect (1) that the [lawyer or client] was committing or intending to commit a crime or fraud, and (2) that the ... attorney work product was used in furtherance of that alleged crime or fraud.’ ABC Corp., 705 F.3d at 155.

The Government can readily satisfy the first requirement. Though ultimately it will be up to a jury to determine whether Doe committed fraud, there is at least a reasonable basis to believe he did. Even setting aside the email, the Government has a recording where Doe allegedly brags about defrauding the class action plaintiffs in the Indiana suit. He purportedly admits in that recording to telling his associate—the same one who was supposed to have already purchased Company A—`I'll pay you ten grand a month if you will step up to the plate and say that you [own the company] and upon the successful completion of the lawsuit [I'll] give you fifty grand.’

This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that `evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.’ In re Chevron Corp., 633 F.3d 153, 166 (3d Cir. 2011). Rather, the second requirement—use in furtherance—exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan `has passed beyond words and is [actually] on foot.’ Hyde v. United States, 225 U.S. 347, 388 (1912) (Holmes, J., dissenting).
In re Grand Jury Matter #3, supra.
The court goes on to point out that,
[t]o illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer's services have been `misused.’ In re Grand Jury Investigation, 445 F.3d 266, 279 (3d Cir. 2006). Only in that limited circumstance—misuse of work product in furtherance of a fraud—does the scale tip in favor of breaking confidentiality.

Here the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government `does not have to show that the intended crime or fraud was accomplished, only that the lawyer's advice or other services were misused.’ Id. (quoting In re Public Defender Serv., 831 A.2d 890, 910 (D.C. 2003)).
In re Grand Jury Matter #3, supra.
The court goes on to explain that
[b]ut none of that happened. Doe merely forwarded the email to the accountant and said he wanted to `discuss’ it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer's work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer's suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.

The District Court gave two reasons for its conclusion that Doe used his lawyer's work product in furtherance of a fraud. First, it suggested that Doe, in forwarding the email to his accountant, `took [his lawyer's] advice’ about amending the tax returns. J.A. 16. It is not clear what the Court meant by this because, as it acknowledged, Doe `never followed through with amending’ the returns. Id. Second, the Court said that the failure to follow through `is of no consequence’ as long as Doe intended, as of the time he forwarded the email, to amend the returns. Id. This is no doubt an accurate statement of the law. See ABC Corp., 705 F.3d at 155. The problem is that there is simply no record evidence suggesting that Doe had ever made up his mind.

None of this should suggest that, in the event Doe is convicted (based on the superseding indictment) and appeals, he should automatically get a new trial because the Government used the protected work product. That is because the Government could avoid a retrial by showing the error was harmless. Bankof Nova Scotia v. United States, 487 U.S. 250, 255–56 (1988). We express no opinion on that question.
In re Grand Jury Matter #3, supra.
The court ended the opinion with this paragraph:
Many appeals involving grand jury proceedings will become moot after the return of an indictment. But the presence of a new grand jury that is continuing to investigate even after issuing a superseding indictment makes this case out-of-lane. As a live controversy remains, an indictment does not automatically preclude us from deciding it. When we do so, we conclude that the crime-fraud exception to the attorney work-product privilege does not apply to the email at issue. We therefore reverse the decision allowing the breach of that privilege.
In re Grand Jury Matter #3, supra.


Sunday, April 23, 2017

The Motor Vehicle Accident, the Death and Texting

The Motor Vehicle Accident, Death and Texting

This post examines a recent opinion the Supreme Court -Genesee County, New York issued in a civil case: Vega v. Crane, 2017 N.Y. Slip Op. 27062 (2017). The court begins the opinion by explaining that
[t]his action was commenced by Plaintiff seeking to recover for injuries she sustained in a motor vehicle accident that occurred on December 8, 2012. The Plaintiff's vehicle was struck by a car driven by Collin Ward Crane, who died as a result of injuries he sustained in the accident (herein after referred to as `Decedent’). Plaintiff alleges that the Decedent's girlfriend, Taylor Cratsley, [a named defendant], (herein after referred to as `Cratsley’), was texting the Decendent while he was driving, thus distracting him and causing the accident.

Plaintiff moved for partial summary judgment on the issues of liability and serious injury. These motions were granted against the decendent, his estate and his father and reduced to a separate order, which was granted on December 7, 2016. Cratsley, moved for summary judgment seeking to dismiss the Plaintiff's action against her in its entirety. The Court reserved on Cratsley's motion for Summary Judgment, which now follows.
Vega v. Crane, supra.
The law at issue in this case is tort law, which is often referred to as the law that deals with "civil wrongs." You can read more about that in this Wikipedia entry.
The Supreme Court goes on to explain how, and why, the litigation arose:
On December 8, 2012, a motor vehicle accident occurred on New York State Route 33 when the vehicle driven by the Decedent struck head-on a vehicle driven by the Plaintiff. The New York State Police investigation concluded that Decedent's vehicle crossed the center line before colliding with Plaintiff's vehicle. Though the accident was unwitnessed, New York State Police investigators concluded that the Decedent most likely was distracted, as there were no signs that Decedent attempted to avoid or take evasive measures to elude contact with the Plaintiff's vehicle.

Upon inspection of the Decedent's vehicle, investigators located a cell phone on the floor of the driver's side, in front of the Decedent and between his legs. The cellular phone, which was significantly damaged, was examined by the New York State Police. Upon inspection, it appeared that the Decedent and Ms. Cratsley were texting before the accident occurred. After recovering the digital information from the Decedent's cellular phone, New York State Police investigators interviewed Ms. Cratsley. She indicated to the investigators, and subsequently confirmed in her deposition and later an affidavit, that although she was texting the Decedent on the date of the accident, she was unaware that the Decedent was driving at the time they were exchanging text messages. (See Affidavit of Taylor Cratsley, dated November 21, 2016). Mrs. Cratsley added that often, when the Decedent was returning from work, a family member would pick him up and drive him home. She also stated that on the date of the accident, although she was aware he was working, she was unaware if he was driving himself or getting a ride to work. Cratsley testified at her deposition that she never expected nor asked the Decedent to send her text messages or read text messages while driving. None of the text messages produced contradict Mrs. Cratsley's testimony.
Vega v. Crane, supra.
The court concludes this part of its opinion by explaining that
Cratsley moved for summary judgment, arguing that since New York State does not recognize a duty to control the actions of a third party, there existed no special relationship between Cratsley and the Plaintiff that would give rise to any special duty. Plaintiff opposed the motion, citing New Jersey precedent that establishes a special relationship and resulting duty under similar circumstances.
Vega v. Crane, supra.
The Supreme Court then took up the legal issues in the case, explaining, initially, that the
Plaintiff acknowledges that there is no New York State precedent to establish a duty that would obligate Cratsley to protect a third party, namely the Plaintiff, from harm. Plaintiff submits that the matter before the Court is a case of first impression in the State of New York. However, the Plaintiff maintains that the duty that should be imposed is consistent with the public policy of the State of New York, which has established similar duties to third parties in other cases.

If Plaintiff's argument is entertained, the Court would be forced to engage in a profound re-examination of negligence law that was addressed in Palsgraf v. Long Island R.R., 248N.Y. 339, 162 N.E. 99 (1928). Palsgraf, an oft-cited authority, held that in order to recover for the negligent act of others, a plaintiff must establish duty, standard of care, breach of duty, and proximate cause. Since Palsgraf, New York courts have carefully examined those components to establish negligence and have elaborated on them to justify a recovery for damages.
Vega v. Crane, supra.
The court goes on to explain that the plaintiff, i.e., Vega,
cites to a New Jersey case that establishes liability in circumstances where a person contributes to a driver's distraction that results in an accident that causes injury. In Kubert v. Best, the New Jersey Superior Court, Appellate Division, held that a third party, who had knowledge that the motorist they were texting was driving at a time the parties were exchanging text messages, could be found liable for any resulting damages. 432 N.J.Super. 495, 75 A.3d 1214 (N.J.App.2013). In Kubert, the Plaintiffs were riding on a motorcycle when a driver crossed the center line and struck them. Both Plaintiffs lost their legs as a result of the injuries they sustained in the accident. Not only did the Plaintiffs sue the driver who struck their motorcycle, but they also sued Shannon Colonna, the party who allegedly was texting the defendant motorist. At her deposition, Colonna testified that she had sent the defendant 180 text messages in less than twelve (12) hours on the day of the accident. Colonna also testified that she did not pay attention to whether the recipient of her texts was driving a car at the time or not. On motion, the underlying New Jersey trial court granted Colonna summary judgment holding that she had no legal duty to avoid sending text messages to Best even though she knew he was driving. The Appellate Division reversed, though still affirming summary judgment on behalf of Colonna. While affirming that Colonna could not be held liable because of the lack of proof demonstrating she knew Best was indeed driving at the time the texts were exchanged, the Appellate Division concluded that `a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.’ Id. Because the Plaintiffs had failed to establish that Colonna had such knowledge while texting Best, she could not be held liable for the resulting injuries caused by the accident.

Plaintiff would have this Court adopt the reasoning employed by the New Jersey Appellate Division in Kubert to deny Cratsley's motion for summary judgment. Plaintiff also relies on to Sartori v. Gregoire, wherein the Fourth Department held that a passenger in a vehicle could be held liable for verbally or physically distracting a driver immediately prior to an accident. 259 A.D.2d 1004, 688 N.Y.S.2d 295 (4th Dept.1999). Further, Plaintiff argues that the Restatement (Second) of Torts § 303, which provides, `[a]n act is negligent if the actor intends to affect, or realizes or should realize that it is likely to affect, the conduct of a third person in such a manner as to create a duty not to interfere with the driver's operation,’ applies to the facts present here.
Vega v. Crane, supra.
The Supreme Court then explained that
[i]n opposition, Cratsley argues that the Plaintiff's argument stands in stark contrast to established precedent in New York. Cratsley maintains that she had no duty to control the conduct of the Decedent when he was driving. While undoubtedly there are certain circumstances that would establish a third-party duty, Cratsley argues that those facts do not exist here. Cratsley submits that New York law does not place a legal duty upon an individual who lacks control over the third party's actions. Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976).

In Pulka, Plaintiffs sued not only the driver who struck a pedestrian, but also the owners of a parking garage. Plaintiffs argued that the garage owners owed a special duty to surrounding pedestrians. The Court of Appeals found that the garage operators owed no duty for an accident that occurred when a patron exited and struck a pedestrian. Pulka stands for the well-settled principle held that before causation could be examined, a legal duty first must be established. The Court of Appeals addressed the question of whether owners of the garage owed a duty to pedestrians. The Court of Appeals held that the owners did not owe such a duty, and refused to hold a garage operator liable for the acts of its patrons. Further, the Court of Appeals held that there needed to exist a duty, wherein the garage operator owed a special obligation to a pedestrian from one of its patrons, before liability could be established. Again, the Court held that there existed no special duty. In fact, the Court held that because of the lack of any special duty between the garage operator and its patrons or between the garage operator and pedestrians, and the lack of any reasonable expectation that the garage operator could control or prevent the negligent conduct of its patrons, no legal duty existed. Id. at 785–786, 390 N.Y.S.2d 393, 358 N.E.2d 1019. Here, the Decendent, his estate and his father simply maintain that `a defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.’ D'Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896 (1987)
Vega v. Crane, supra.
The court then began its ruling on the issue in the case, explaining, initially, that
[t]he argument advanced by the Plaintiff is unique in New York when considering the established body of precedent on the issues of proximate cause, foreseeability, and duty. While states such as New Jersey, as memorialized in Kubert, advance a different standard, courts in New York have either been reluctant to broaden the principle of negligence law or simply refused to do so.

The principle of negligence law is that in order to impose liability for a negligent act, the act must be the proximate cause of the injury that resulted therefrom. N.Y. Jur. 2d, Negligence § 47. In a motor vehicle accident, `an act or omission is a proximate cause of an accident if it was a substantial factor in bringing about the accident. That means if it had such an effect in producing the accident that reasonable men or women would regard it as a cause of the accident.’ Rubin v. Pecoraro, 141 A.D.2d 525, 529 N.Y.S.2d 142 (2nd Dept.1988). The injuries or the damages complained of must have been those which might have been foreseen by a person of ordinary intelligence and prudence, although not necessarily in the precise form in which they occurred. Kellogg v. Church Charity Foundation of Long Island, 203 N.Y. 191, 96 N.E. 406 (1911).

The Plaintiff wishes to re-examine the long-standing doctrine of negligence law established in Palsgraf v. Long Island Railroad, supra. Palsgraf has been hailed as `perhaps the most celebrated of all torts cases and one of the best-known American common law cases of all time.’ William ProsserPalsgraf Revisited, 52 Mich. L. Rev. 1, 1 (1953). Although familiar to the bench and bar, the facts of Palsgraf deserve mention. In Palsgraf, a man who was carrying a package ran to board a departing train. One of the railroad guards noticed the man and attempted to pull him onboard the train. At the same time, another guard pushed him from behind. In doing so, the man dropped a package containing fireworks to the ground. Willis W. Hagen II, Accountants Common Law Negligence Liability to Third Parties, 1988 Colum. Bus. L. Rev. 181 (1988). `An explosion which occurred caused a scale at the other end of the platform to fall on [Palsgraf], who sued the railroad for damages.’ Id. at 201. In his majority opinion, Judge Cardozo wrote that the Long Island Railroad was not liable to Palsgraf because it did not owe a duty of care to her. In order to find negligence, the injury to the plaintiff must have been reasonably foreseeable to the defendant. Palsgraf, 248 N.Y. 339, 341, 162 N.E. 99.

As memorialized by Judge Cardozo,`[i]n every instance, before negligence can be predicated of a given act, the act must be sought and found a duty to the individuals complaining, the observance of which would have averted the injury. Thus, where the injury to the particular plaintiff is not reasonably foreseeable, the defendant does not have an obligation to refrain from negligent conduct. Since the defendant does not have a duty to exercise ordinary care toward unforeseeable persons, liability for negligence does not result. Id. at 342, 162 N.E. 99.’

`Cardozo held that the defendant could not be liable as he could not have reasonably foreseen a risk of injury to the Plaintiff. As such, the defendant's duty of care did not extend to the Plaintiff. In Palsgraf, the defendant could not have reasonably foreseen that the plaintiff, who was standing at the other end of the platform, would be injured as a result of an explosion caused by a falling package that occurred on the opposite end of the platform. As such, because it was not reasonably foreseeable, no duty of care was owed.’
Vega v. Crane, supra.
The Supreme Court then returned to the issue in this case, noting that
[h]ere, Plaintiff asks to modify this standard to broaden the scope of duty from what should be reasonably foreseeable. In particular, Plaintiff is asking that a party texting a person who could be driving should be held liable for the foreseeable risk that might result from this conduct. Although New Jersey may wish to employ such a departure, this Court declines to do so.

The Plaintiff's approach longs to have this Court adopt a standard that is a significant retreat from established law in this area. While Plaintiff offers a detailed analysis suggesting that there already exists a pad from which to launch this undertaking, much of the precedent cited by Plaintiff can be distinguished and does not support her sweeping conclusion.

Relying on Restatement (Second) of Torts § 305, Plaintiff suggests that New York law could be construed to impose liability on an individual who could or should have known that their conduct might result in harm to an unrelated third party. Referencing Sartori v. Gregoire, Plaintiff maintains that a passenger may be liable for verbally or physically distracting a driver immediately prior to a collision. 259 A.D.2d 1004, 688 N.Y.S.2d 295 (4th Dept.1999). The facts of Sartori are quite different from not only those present here, but from the standard for which Sartori imposes on similarly situated defendants. In Sartori, `the defendant commenced a third-party action against a passenger in her vehicle, alleging that his unwanted sexual advances towards her immediately before she started her vehicle caused her to forget to turn on the vehicle's headlights.' Id. The Fourth Department held that

 `[w]hile a passenger in a car may be liable if he distracted the driver while operating the vehicle immediately prior to the accident, (see, e.g., Collins v. McGinley, 158 A.D.2d 151, 153, 558 N.Y.S.2d 979, appeal dismissed 77 N.Y.2d 902, 568 N.Y.S.2d 917, 571 N.E.2d 87, 78 N.Y.2d 1002, 575 N.Y.S.2d 276, 580 N.E.2d 762; Whalen v. Daugherty, 30 A.D.2d 604, 290 N.Y.S.2d 3, lv. denied 22 N.Y.2d 647, 295 N.Y.S.2d 1029, 242 N.E.2d 495) it is undisputed that the third-party defendant had no verbal or physical contact with defendant once she started her vehicle and drove out of the parking lot onto the main road where the accident occurred. Thus, third-party defendant's conduct cannot be deemed a proximate cause of plaintiff's injuries. Id.’
Sartori v. Gregoire, supra.
The court went on to note that,
[h]ere, Cratsley was not in the vehicle with the decedent as was the case in Sartori, thus depriving her of the first-hand knowledge the defendant in Sartori enjoyed. Therefore, the holding in Sartori is misplaced. Second, Sartori does not address the issue as to whether a third party, who has no knowledge whether a defendant was driving, owes any duty to others. Clearly there is a greater nexus between a driver and a passenger than the scenario that exists here.
Vega v. Crane, supra. The opinion does not explain what §  305 of the Restatement (Second) of Torts provides, but this is what § 305 says:
An act may be negligent if the actor intends to prevent, or realizes or should realize that it is likely to prevent, another or a third person from taking action which the actor realizes or should realize is necessary for the aid or protection of the other.
The court then addressed another argument the plaintiff made, which was that
there exists precedent that permits the expansion of the foreseeability doctrine. In Davis v. South Nassau Communities Hospital, a 2015 New York Court of Appeals case, it was held that medical providers owed a duty to third-party motorists for patients whose medication might affect their ability to drive. 26 N.Y.3d 563, 26 N.Y.S.3d 231, 46 N.E.3d 614 (2015). Davis involved a motor vehicle accident involving a patient of a hospital who had been treated and prescribed certain medication. A party was intravenously administered a pain killer and a `benzodiazepine drug without warning her that such medication either impaired or could impair her ability to safely operate an automobile.’ Id. at 569, 26 N.Y.S.3d 231, 46 N.E.3d 614. After her discharge from the hospital the party drove her vehicle, in an impaired state, and struck another vehicle resulting in an accident. The question the Court of Appeals faced was whether the hospital and the physicians who treated the patient owed a duty to the plaintiff to warn that the medication could affect her ability to operate a motor vehicle.

The majority opinion painstakingly examined the record to support its decision. In particular, the Court noted that during the trial, an expert had testified that the `package label for Dilaudid states that it “may impair mental and/or physical ability needed to perform potentially hazardous activities such as driving a car or operating machinery.”’ Id. at 570, 26 N.Y.S.3d 231, 46 N.E.3d 614. Further, the expert further opined that the same package, `titled Use in Ambulatory Patients states that the drug “may impair mental and/or physical ability required for the performance of potentially hazardous tasks (e.g., driving, operating machinery). Patients should be cautioned accordingly.”’ Id. Clearly, the instructions for the medications that were prescribed required the attending physician to warn and direct the non-party of the ill effects of the medication. These facts supported the Court of Appeals expansion of the duty otherwise owed by a defendant to the public at large. Under the facts in Davis, the Court held `the defendants owed plaintiffs a duty to warn [the non-party] that the medication administered to her either impaired or could have impaired her ability to safely operate an automobile.’ Id. at 571, 26 N.Y.S.3d 231, 46 N.E.3d 614.

The Court understood that when modifying the question of duty, its reach must be always limited by what is foreseeable. Id. at 570, 26 N.Y.S.3d 231, 46 N.E.3d 614. As the Court of Appeals acknowledged, `[a]ny expansion of duty is a power to be exercised cautiously, but it is a power that must be used if the changing needs of society are to be met.’ Id. As Judge Cardozo observed, that while dangers are always present, `dangers change as civilizations develop’. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). Consequently, in Davis, if a medical provider administers medication that might impair their ability to safely operate a motor vehicle, the `medical provider has a duty to third parties to warn the patient of that danger.’ Davis, 26 N.Y.3d at 570, 26 N.Y.S.3d 231, 46 N.E.3d 614.
Vega v. Crane, supra.
The court went on to explain that
[w]hile at first glance the holding in Davis represents a tenuous stretch from the established orthodoxy on the question of negligence, the Court of Appeals detailed its careful historical progression in expanding the existing duty of care. First, in Eiseman v. State of New York, the Court of Appeals declined to recognize a duty to a large class of unknown individuals as opposed to a `known and identifiable group.’ 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987). In Eiseman, an ex-felon with a known violent history, was released from jail and placed into a `special State college program for the disadvantaged.’ Id. at 180, 518 N.Y.S.2d 608, 511 N.E.2d 1128. After being placed in the program, the ex-felon raped and murdered a fellow student. The student's estate sued the State alleging that the State's physician, who had treated the felon and knew of his violent history and psychological instability, owed a duty to warn the college community at large. The Court declined to extend the principle of duty maintaining that the State's treating physician `did not owe a duty of care to members of the community individually.’ Id. at 188–189, 518 N.Y.S.2d 608, 511 N.E.2d 1128.

In Purdy v. Public Administrator of Westchester County, a resident of a local nursing home, who apparently had use of a vehicle, caused an accident resulting in injury. 72 N.Y.2d 1, 530 N.Y.S.2d 513, 526 N.E.2d 4 (1988). The resident had a medical condition that left her susceptible to fainting spells and blackouts. The plaintiff in Purdy argued that the nursing home and its resident physician owed a duty to prevent the resident from driving or to at the very least warn her of the dangers of driving given her condition to not only the Plaintiff, but an unidentified member of the public. The Court of Appeals recognized that `there exist special circumstances in which there is a sufficient authority and ability to control the conduct of third persons that [have given rise to] a duty to do so.’ Id. at 8, 530 N.Y.S.2d 513, 526 N.E.2d 4. Notwithstanding that, the Court of Appeals declined to find the existence of a special relationship between the defendant and the resident that would require the defendant to govern their conduct for the benefit of the plaintiff. The Court held that neither the nursing home nor the doctor had the `authority or ability to exercise such control over [the resident's] conduct so as to give rise to a duty on their part to protect [the] plaintiff—a member of the general public.’ Id. at 8–9, 530 N.Y.S.2d 513, 526 N.E.2d 4.

The Davis Court also referenced Tenuto v. Lederle Laboratories, 90 N.Y.2d 606, 665 N.Y.S.2d 17, 687 N.E.2d 1300 (1997); Cohen v. Cabrini Med. Ctr., 94 N.Y.2d 639, 709 N.Y.S.2d 151, 730 N.E.2d 949 (2000); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001); and McNulty v. City of New York, 100 N.Y.2d 227, 762 N.Y.S.2d 12, 792 N.E.2d 162 (2003) in detailing its evolution to the holding it ultimately reached. In each of these cases, the Court of Appeals gradually expanded the duty owed to other individuals. However, there was always a nexus between the plaintiff and the offending defendant, for whom a special relationship allegedly existed. Mostly, that nexus dealt with an extension of a duty physicians owed their patients. Other cases, most notably Hamilton, where the Court of Appeals concluded that handgun manufacturers did not owe a duty of care to in the marketing and distribution of the handguns they manufactured, ostensibly dealt with a large, undefined group that the named defendant could not possibly foresee a duty to cover. Davis dealt specifically with a doctor's failure to caution an unrelated party about the side-effects of prescribed medication that contained specific instructions with appropriate warnings. Here, no such nexus or specificity exists that could link an individual, who did not have knowledge that the tortfeasor was driving, to an unnamed plaintiff of the general community who was involved in an unfortunate, but unforeseen, accident.
Vega v. Crane, supra.
The Court of Appeals then began the process of outlining, and explaining, its decision in this case. It began by explaining that
[i]nasmuch as the Court of Appeals expanded the breadth of the duty owed in a negligence case, it did so cautiously and reluctantly. The Court warned not to misinterpret its decision as a full erosion of the duty of care. Instead, the Court heralded `while the temptation is always great to provide a form of relief to one who has suffered, the law cannot provide a remedy for every injury incurred.’  Davis, 26 N.Y.3d at 580, 26 N.Y.S.3d 231, 46 N.E.3d 614; citing Albala v. City of New York, 54 N.Y.2d 269, 445 N.Y.S.2d 108, 429 N.E.2d 786 (1981). More directly, `[n]ot all mistakes result in liability.’ Id.

Justice Stein's dissent, while not controlling, was certainly instructive in dissuading a haphazard expansion of the concept of duty. Cautioning not to take sympathy into consideration, she advised that courts must be mindful of the precedential, and consequential, future effects of their rulings and “limit the legal consequences of wrongs to a controllable degree.” Id. at 584, 26 N.Y.S.3d 231, 46 N.E.3d 614, citing  Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 (2000), quoting Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969). This Court agrees that, no matter how careless it may seem, not all conduct creates a duty to an unknown. This is especially true when the record fails to establish that the defendant had any knowledge that the Decedent was driving the vehicle that ultimately struck the Plaintiff. The absence of that proof, as well as the established reluctance to expand a duty to persons with whom a tenuous nexus exists, requires summary judgment. To expand the duty as Plaintiff here seeks would set a crushing exposure to liability, which Courts generally must protect against. Strauss v. Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985).
Vega v. Crane, supra.
The Supreme Court ended the opinion by explaining that
[i]f the theory advanced by the Plaintiff here is adopted, the expansion of liability to individuals who text message would be exponential. Should a Court accept the Plaintiff proposition, a party texting another, regardless of any specific knowledge, could be liable for an injury caused by the party receiving the text messages simply by virtue of the text being sent. In this day and age, where texts are routinely sent to, for example, advise the public of breaking news, that prescriptions are ready for pick up, or to advise that a bill is to be paid, the sender would be responsible for any injuries that could be caused should a driver become distracted by their receipt. With texting being as profligate, the potential expansion as contemplated by the Plaintiff is astronomical.

This Court is not ignorant of the many steps taken by not only this state, but others in the nation, to protect against motorists from texting while driving. While that certainly is not the only issue presented for consideration, this Court does not believe it is the province of a Court to establish a precedent for want of a statute that otherwise has not been considered, let alone approved, by a legislative body. Though many would prefer a Court simply to make law where either a legislative body or executive has failed to do so, this Court does not believe that is its role. It is not the role of the judiciary to sit on high and promulgate what it believes should have been a policy determination made elsewhere. Instead, the courts have deferred to the wisdom, or absence of it, of the legislature in defining what is actionable and what is not. Rosenfeld v. Isaacs, 79 A.D.2d 630, 433 N.Y.S.2d 623 (2nd Dept.1980); MobilOil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). In short, courts are not free to decide what should be founded in statutory authority. This is the realm of the legislature. Simply put, if the legislature wishes to make actionable a third-party's texting to a motorist, notwithstanding their lack of knowledge that the person to whom they are texting is driving, they should do so. This Court refuses to establish this cause of action by judicial fiat.

Accordingly, the motion for summary judgment made by Defendant, Taylor Cratsley, is hereby GRANTED. Defendant shall submit an Order on notice.
Vega v. Crane, supra.