The dangers of texting while driving are well known, with
distracted drivers properly found criminally and civilly
responsible for the injuries they cause. In an interesting twist,
the New Jersey Court of Appeal recently held that the person
sending the text to a driver may also be held
Teenager Kyle Best and his friend Shannon Colonna were in the
habit of texting each other frequently. One afternoon, immediately
after punching out of his part time job at 5:41 pm, Best texted
Colonna. He then got into his pickup truck and at 5:49, records
show he made a 911 call to report that he hit and grievously
injured two people on a motorcycle. Those same records also show
that in the eight minutes between leaving work and the 911 call,
Best and Colonna exchanged three texts while Best was driving.
The injured parties sued Best (this claim settled) and sued
Colonna as well, claiming that she had a duty to avoid sending text
messages to someone who is driving. They advanced two arguments:
first, that Colonna had was contributorily negligent in that she
"aided and abetted" Best's unlawful texting while
driving and second, that Colonna had an independent duty to avoid
texting a person whom she knew was driving.
The trial court dismissed the claim on a summary judgment
motion, saying no such duty existed. On appeal, the New Jersey
Court of Appeal held, in Kubert v. Best, No. A-1128-12T4 (N.J.
Super App. Div. 2013) that a duty to avoid sending text messages to
a driver does exist. However, in the circumstances of this case,
the appellate court held that the plaintiff had not established the
duty arose, and dismissed the claim on that basis.
The appellate court qualified the duty on a texter, saying:
We hold that the sender of a text message can potentially be
liable if an accident is caused by texting, but only if the sender
knew or had a special reason to know that the recipient would view
the text while driving and thus be distracted.
The "special reason" requirement would be satisfied by
showing that either a special relationship existed between the
sender and the recipient (e.g. employer-employee, parent-child,
etc) or that the sender had actively encouraged the driver to
commit the negligent act.
In attempting to attach joint liability, the plaintiff alleged
that Best and Colonna, as sender and recipient, were acting in
concert. The test in the Restatement (Second) of Torts,
subsection 876 however, requires there be a special relationship
between the two, and active encouragement to participate in the
negligent act. The court held that there was no special
relationship between the two, and that the mere sending of a
wireless communication, without more, could not be considered
With respect to an independent duty, the court held that such a
duty does exist and attaches to the sender of a text because he or
she "has disregarded the attendant and foreseeable risk of
harm to the public" that will occasioned by distracting the
This case sounds a cautionary note for employers, and for
manufacturers of communications technology.
Employers, especially those which use wireless communication for
their field employees (e.g. dispatch, work order management, etc.),
may want to ensure their policies around such communication clearly
state that they are not to be used while driving. A robust policy
in this regard may assist in establishing that the employer had a
reasonable expectation that an employee would not review any
communications received while driving. Certain employers,
particularly those using communications technologies that are
integrated into vehicles, may want to consider installing
technologies that disable such communication while the vehicle is
Similarly, auto manufacturers that have embedded communication
technologies may wish to include strong warnings about the use of
such technologies while driving or even consider making available
the option of a kill switch that disables the technologies while
the vehicle is in motion.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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