Let me throw an additional concept into this discussion. Damage Law also includes a concept called "contribution". It grants one who has to pay their own damages plus those of another party (under joint and several liability) the right to recover from the other liable party for the damages paid in excess of the payer's proportion of liability.

So, if the texter was jointly and severally liable and paid the full amount of the damages, the texter could thereafter sue the driver to make the texter "whole". Theoretically, this makes not only the damaged party whole, but the jointly and severally liable party which pays in excess of it share of the damages "whole" too.

Does this additional concept of contribution seem fair? how about less "inherently unfair??



(Oh, and all of this reminds me of my favorite lawyer line: There is no such thing as "fairness" here. The law and courts are the last place you will ever find it.)