In a very recent opinion that could have profound implications for many employers, the New Jersey Appellate Division held 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." Under this standard, a court could find a person who knowingly texts a driver liable for an accident caused by the distraction of the text message exchange.
While this case did not involve the employer-employee relationship, many employers routinely communicate with employees via cell phone voice calls or texts while the employee is or may be driving. This appellate opinion, Kubert v. Best, opens the door to a new form of potential liability to third parties for employers. When automobile accidents occur involving a driver texting (or perhaps just speaking) on a cell phone, litigation against a driver's employer may be brought based on such communications arguably causing or contributing to the accident.
While this case may be on its way to the N.J. Supreme Court, and the outcome or legal rationale could be modified, employers should take note now to re-evaluate their cell phone communication policies and practices with employees who may be driving. Specifically, all employers should, at minimum, prepare or amend a texting-while-driving policy to address texts and calls by their employees to an employee driver. These policies may have to caution workers that it is equally forbidden to send a text message or phone an employee who may be driving at the time – an extremely constraining practice. Under the rationale of Kubert, requiring employee-drivers to pull over before from reading or writing any text or answering any call and/or equipping employees with hands-free equipment could prove to be effective solutions. We will keep readers aware of developments.
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