Could you be blamed for a car crash because you sent a text message? 

A New Jersey judge will decide later this week if the sender of a text message might be partially liable for a horrific auto accident that occurred because the driver was reading that message on his cell phone and drifted into oncoming traffic.

With nearly half a million U.S. drivers injured in distracted driving-related accidents every year, according to the National Highway Traffic Safety Administration, the judge’s decision could have wide-ranging impact in both the legal and digital realms.

While it might seem absurd to blame someone who isn't even in the car -- or anywhere near it -- for causing an accident, some legal experts say the plaintiff is on firmer ground than you might think.

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Skippy Weinstein, a Morristown-based lawyer, is using similar logic to press the case he filed on behalf of David and Linda Kuber. Both Kubers lost their legs during a 2009 crash in Mine Hill, N.J., after 19-year-old Kyle Best sideswiped their car when driving while texting. Weinstein said Shannon Colonna, who was texting with Best, should also be held responsible for the Kubers’ injuries.

"She was not physically in the vehicle but she was electronically present," Weinstein told msnbc.com. "She and he were assisting each other in a violation of the law."

That word "assisting" is at the crux of Weinstein's novel legal argument. 

Most readers will be familiar with the notion of "aiding and abetting" a criminal act and the guilt it brings: the man who knowingly holds the door for the gang is just likely to be convicted of bank robbery as the safe cracker.

More recently, this notion of aiding and abetting has been extended to civil liability cases, too, creating a basis for what's sometimes called "secondary" or "vicarious" liability. For the past two decades, most civil aiding and abetting cases have been limited to investment and securities fraud: An aggrieved investor might not only sue Bernie Madoff for stealing his money, for example, but also go after a third-party broker who repeatedly executed trades for Madoff. Even if the trader wasn't profiting from the scheme or part of a "joint enterprise,“ a court might find the trader provided assistance to Madoff, and should have known that someone was likely be injured by his actions.

The aiding and abetting argument in injuries that give rise to lawsuits, known as "torts," is only beginning to find its way into other kinds of civil cases.

There's a simple three-pronged test to prove someone is partly to blame for causing an injury by aiding and abetting someone else. It is set out in the Restatement of Torts published by the American Law Institute, which guides most civil courtrooms:

1) The party the defendant assists must do a wrongful act;

2) The party must be generally aware of his or her role in the illegal or "tortuous" act;

3) The party must "substantially assist" in the principal violation.

Weinstein think his argument is easy to make. The driver violated the law by texting while driving. Colonna, the text sender, should have known that Best was driving home from work and had to know texting while driving was a violation, he said. Therefore, it's hard to argue that a text sender isn't substantially assisting in the creation of a text message conversation that violates New Jersey's driving laws.

"That very comfortably satisfies the third prong of the legal test," he said.

Colonna’s lawyer, Joseph McGlone, doesn't think the argument has any merit, and has asked Morris County Superior Court Judge David Rand to dismiss the case. Rand is scheduled to rule this week on McGlone’s motion to dismiss the case.

The sender of a text message has no way to control or predict when the recipient will read it, McGlone argues.

"The sender of the text has the right to assume the recipient will read it at a safe time,” McGlone told the local Daily Record  newspaper. “It’s not fair. It’s not reasonable. Shannon Colonna has no way to control when Kyle Best is going to read that message."

He added that there is no precedent for heaping liability on a person on the other side of a text message conversation that causes injury.

Of course, there's no precedent for a lot of legal areas in the Digital Age. In situations like this, judges usually turn to analogies. In driving injury cases, the judge has a bushel full to choose from.

For starters, it's hard to tag liability on anyone who isn't holding the steering wheel of the car while an accident occurs. Lawyers around the nation have repeatedly tried and failed to make passengers partly responsible for accidents caused by drunken drivers when passengers knowingly get into a car with an intoxicated driver.

There are exceptions, however. A South Carolina court has said a passenger could be judged a "proximate cause" of an injury if the driver and passenger were in some kind of "joint enterprise," such as the passenger steering the car while the driver presses the gas pedal.

Passengers who have directly encouraged drivers to break the law -- by urging them to speed excessively or to drive in the oncoming lane as part of a game, for example -- have also been found liable, Weinstein says.

But to find a passenger liable, the South Carolina court said, "The passenger must have an equal right to control the direction and management of the vehicle." It seems hard to argue that a text message sender has equal ability to control the vehicle as the driver does.

But there are plenty of other situations where someone other than the driver has to pay after an injury accident, an extension of liability called “imputed negligence.” The most common is when the driver is "an agent" of someone else -- when a pizza delivery man driving for work causes an accident, his employer is liable.  Parents are often liable for accidents their children cause if they kids are directly under their care. 

There's also concept called "negligent entrustment": if you knowingly let an unlicensed driver take your auto out for a spin, you will probably be liable for an accident he or she causes. 

Neither of those cases fit this situation well, however. So Weinstein has settled on a simpler analogy.

"If she was in the vehicle and put her hands over his eyes so he couldn't see, she would be liable," he said. "(Texting with him) is as if she put her hands over his eyes."

Is texting the digital equivalent of willfully rendering someone blind? To even make that argument, and to press on with the aiding and abetting claim, Weinstein has to persuade the judge that Colonna knew that Best was texting while driving. Colonna's lawyers are contesting that point, but Weinstein says the pattern of texts between boyfriend and girlfriend make clear that she must have known he was on his way home from work.

But even if he fails on that argument, it's easy to imagine other lawsuits where evidence of knowledge by the sender could be hard to deny. A driver might directly text, "Hey, I'm driving home," for example.

That would make a big difference in a case like this, said Robert Mitchell, a Utah-based lawyer and author of a recent article on aiding and abetting claims.

"If there is conclusive evidence that the person sending the text messages to the driver knew the driver was texting while driving, we see no reason why a claim for aiding and abetting the driver’s negligent or reckless conduct could not be made. The case is probably weaker if there is no evidence of actual knowledge, but only evidence of ‘constructive knowledge,’" said Mitchell, referring to a concept that the sender "should have known" the recipient was driving. "Courts disagree over whether constructive knowledge is sufficient to give rise to aiding and abetting liability."

Courts have found that the contribution by this third party in aiding and abetting cases can't be slight – it must be “significant.” For example, giving directions to the bank robber probably wouldn’t be substantial enough to get you prosecuted, but telling him what time security guard shifts change could be. And, as with most civil liability cases, the harm caused by the action doesn't have to be intentional.

Mitchell said this is the critical phrase in the American Law Institute's guidelines.

"If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act. This is true both when the act done is (intentional) and when it is merely (negligent)," Mitchell wrote in his review, quoting the guidelines with added parenthesis. In fact, liability exists even if the third-party has no idea he or she is doing something illegal or negligent.

So in Mitchell’s view, it's a relatively easy to argue that the texter "substantially assisted" the driver in causing the accident. 

"The third prong, substantial assistance, would be an easier hurdle to clear (than knowledge) since sending somebody a text message while driving distracts the driver and that distraction may ultimately cause the accident," he said.  "Of course defenses may include superseding or intervening causes to the underlying tort (the first prong), like bad weather, poor road conditions or visibility, avoiding someone or something on the road."

Not all experts agree, however. Maryland-based lawyer Bradley Shear, an expert in digital law, openly fretted about how far liability might extend if Weinstein is successful in his novel legal argument.

"What if someone is hopping on a boat, and they look down at a text, slip and drown? What if a doctor gets a text before a surgery that upsets him and he makes a mistake? Is the sender responsible?" he said. "If you start going down that route where are you going to draw the line?"

Mark Rasch, for head of the Justice Department’s Computer Crimes Unit, said he thinks the case will boil down simply into this question: Can anyone really prove that the sender of the text, Colonna, knew that Best would read it while driving? Absent such proof, there is no case, he says.

But he was concerned with the larger issue of extending liability through digital means.

“The real question here is, do we as a society want to impose a duty on the non-driving texter for accidents that happen when a recipient is driving?” he said. “For now, it seems a reasonable place to draw the line at this: The person driving has a duty not to text. And the person on other end of line has no duty unless there are special circumstances.”

One special circumstance he envisioned: A boss or other person in a position of power who received a message from an employee saying, “I can’t text, I’m driving,” but continued to send demanding texts with an implied threat if they weren’t answered quickly.

“The person in the position of authority might have liability then,” said Rasch, now a cybersecurity consultant with Virginia-based CSC Inc.

Complicating matters, juries can apportion liability, and theoretically could find a driver 90 percent responsible and the sender of a text 10 percent responsible. Damages can be similarly apportioned, although the realities of collections means the party with the deepest pockets usually pays the most in damages.

It’s also possible that Congress or state legislatures might create a chain of liability, as states have done with dram shop laws, which make bars liable for injuries and damages caused by patron who are served after they’re drunk.

For his part, Weinstein demurs when asked if he's trying to set an important legal precedent or make law. He's just trying to win a case for his client, he said.

"The defense ... wants to make this into a cause celebre, but this is not complicated," he said. "A jury may find I'm wrong and thrown me out on my duff. ... All I'm saying is don't (text) while driving, and don't assist someone else in texting while driving."

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Americans overwhelmingly think texting while driving is dangerous, but about half of cell phone users do it anyway.  Worse yet, 44 percent of U.S. adults say they've been a passenger in a car when a driver used their cell phone in a way that created a dangerous situation, according to a poll released Friday by the Pew Internet and American Life Project.  The finding suggests that drivers are talking out of both sides of their mouth.  In a poll published last year, 89 percent of adults said they think texting while driving is dangerous and they would support a ban.

States and local governments have acted aggressively to legislate against texting while driving, and 28 states ban it outright, but the laws appear to be having little impact.

While recent emphasis has been placed on stopping young drivers from texting -- 28 states and the District of Columbia ban all cell phone use by novice drivers -- adults are by one measure even more likely to text while driving. A Pew study last year found that 34 percent of 16- and 17-year-old drivers admitted sending or reading a text while driving, while 47 percent of adults said they had done so in the new study.

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"People are happy with their cell phones. There's a sense that it's happening all the time all around them, so it must be ok," said Lee Rainie, director of the Pew project.

The study has limitations. It relied on drivers' honest answers to poll-takers' questions. But Rainie said that respondents were unusually willing to confess to cell phone use while driving, another sign that there is not an overwhelming social stigma attached to it.

And the study did not account for the circumstances of drivers' cell phone use. Some may argue that texting while sitting at a stop light or calling while on an open highway in the Southwest is not dangerous behavior.

Still, respondents in numerous other studies show drivers think cell phone use in cars is dangerous. These do-as-I-say, not-as-I-do results shouldn't be too surprising, Rainie said.

"This is a classic thing you see in a lot of polling, this idea that it's OK for me but not for others," Rainie said. "People often underestimate their neighbors' ability and overestimate their own."

Behavioral scientists sometimes call this "superiority bias," and it shows up in all sorts of studies. Most people think they have above-average intelligence, for example. More on point, in a study conducted during the 1980s, 93 percent of Americans said they were above-average drivers.

The Pew research is consistent with other studies that show U.S. drivers just can't seem to put down their cell phones. According to figures released by the National Highway Traffic Safety Administration (NHTSA) in 2008, at any given moment 6 percent of drivers are talking on a cell phone.  That was up from 4 percent in 2002. The study also found that 1 percent of all drivers are texting at any given time.

That's not hard to observe.  Just stand on any street corner and peek at drivers as they pass. Even during rush hour, a stunning number are yakking -- or even typing -- away.

Perhaps that's why a 2009 study by the AAA Foundation for Traffic Safety found that 35 percent of drivers feel less safe on the road than they did five years ago.

Roads are getting safer, too
On the other hand, based on number of fatalities, driving is becoming safer. In March, the federal government announced that highway deaths fell nearly 9 percent from the previous year.  The fatality rate was the lowest since the government began tracking the data in 1966. Highway deaths have fallen steadily since 2005, leading some to suggest that the drop off is no cause for celebration: They say a sluggish economy that has kept drivers off the road is the cause. But dramatic safety improvements in highway design and cars, along with increased seat belt use rates, are also cited as reasons for the dip in deaths.

But the drop-off might come with a trade-off, in the form a surprising cause-and-effect that's referred to as the Peltzman Effect.  Cars can become so safe that drivers become overconfident and engage in more risky behaviors, such as texting while driving. It appears that while fatalities are down, fatalities caused by cell phone users are on the rise.

Not all states collect data on the cause of crashes, and often, that data is speculative. Still, the NHTSA estimates that in 2008, 5,870 people lost their lives and another half-million were injured while talking on the phone or texting -- meaning cell phones played a role in nearly one out of seven driving deaths and one out of five accidents.

Efforts by states to legislate the problem away have been bumpy.  Seven states and the District of Columbia outlaw the use of all hand-held cell phones while driving, encouraging a thriving market in hands-free devices. But several studies have discredited this strategy, showing it's the conversation -- not the one-handed driving -- that causes the distraction and danger.

Still, despite those fits and starts, Congress seems ready to take on the issue.  This month, the Senate Commerce Committee approved a bill that would set up a $94 million grant fund for states that take action against cell phone use while driving. The measure is awaiting action by the full Senate..

Enforcement also is a tricky issue. While in most states texting and driving is a primary offense -- meaning cops can issue tickets even if there is no other offense -- there are practical limits to the ability of police officers to peer into drivers' cars and see what they are doing behind the wheel. In many cases, tickets are handed out only after a police officer witnesses a tell-tale sign of texting while driving, such as erratic swerving.

(Click for a summary of state laws).

In recent years, there has been more focus on the more general topic of "distracted" driving, which includes activities that range from fumbling with iPods to putting on makeup.  Still, cell phones are a lightning rod for emotion on the topic. The heartbreaking stories of tragic deaths caused by cell phone use rival those on drunk driving.

Even Oprah has gotten involved, recently promoting a "No Phone Zone" pledge on her television show and in radio advertisements.

The Pew study shows that both legal and educational efforts aren't gaining much traction. Perhaps that's because technology is apparently using our brains against us. Some studies show that cell phone use -- calls or texts – evokes a response similar to addictive behavior.  Receiving or sending a message can give recipients a "kick" in the form of dopamine, part of the brain's seek-and-pleasure system. One kick usually encourages another, and users often get caught in a "dopamine induced loop," according to psychologist Susan Weinschenk, author of the book "Neuro Web Design."

That makes it awfully hard to ignore a buzz that indicates a text message is waiting to be read -- outweighing any perceived risk.

Pew researchers found that men are more likely than women to text while driving, perhaps because men are generally "more risk takers," Rainie said. Still, 42 percent of women have texted while driving.

The only group which seems unwilling to make the dangerous texting-while-driving bet are older adults -- only 3 in 10 adults aged 46 or older say they have done so. The gap is easily explained because younger users are far more comfortable with multitasking, Rainie said.

"They are multitaskers in every other dimension of their lives, why not driving?" he said.