United States: Text A Driver In New Jersey And You Could Be Liable

The New Jersey Appellate Division has articulated a new duty potentially resulting in liability for the sender of a text message directed to a driver of a motor vehicle.

In Kubert v. Best, et al., __ N.J.Super. __ (App. Div. August 27, 2013), the court held that "[w]hen a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time."

On the afternoon of September 21, 2009, plaintiffs Linda and David Kubert were severely injured while riding together on a motorcycle when they were struck by a pick-up truck traveling in the opposite direction that suddenly crossed the center double-line of the road. The pick-up was operated by 18-year-old defendant Kyle Best, who was texting his 17-year old friend, defendant Shannon Colonna. Plaintiffs settled their claims with Best, and the court granted summary judgment to Colonna on the ground that she did not have a legal duty to avoid sending a text message to Best, even if she knew he was driving.

On appeal, the appellate court affirmed the trial court's order. However, it refused to adopt the trial court's reasoning that a remote texter does not have a legal duty to avoid sending text messages to one who is driving. Instead, the court 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.

In rendering its decision, the appellate court evaluated the applicability of Restatement §876 and distinguished two cases where the defendants were actually present at the site of the accident. Champion ex rel. Ezzo v. Dunfee, 398 N.J. Super. 112 (App. Div.), certif. denied, 195 N.J. 420 (2008) (passenger's failure to prevent wrongful conduct by driver is ordinarily not sufficient to impose liability upon passenger); and, Podias v. Mairs, 394 N.J. Super. 338 (App. Div.), certif. denied, 192 N.J. 482 (2007) (passengers found liable for giving "substantial assistance" or "active encouragement" to driver who fails to fulfill his duties to remain at the scene of the accident and to notify the police). The court determined that unlike the individuals in Champion and Podias, Colonna did not have a special relationship with Best where she could control his conduct; nor was there evidence that she actively encouraged Best to text her while he was driving (e.g., there was no evidence in the record of the substance of their texts). Significantly, the court acknowledged that the act of sending a text message, by itself, is not active encouragement that the recipient read the text and respond immediately.

The court also acknowledged that there was no New Jersey case law specifically on point addressing whether there was an independent duty to avoid texting to a person who was driving a motor vehicle. However, after analyzing such case law from other jurisdictions, the court concluded that "one should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving." The court explained that "whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability."

Notably, however, the court acknowledged that foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists. Thus, it opined that,

The court explained that the imposition of this new limited duty was justified because "when the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways, similar to that of a passenger physically present in the vehicle." Similar to the passenger that must avoid distracting the driver, the remote sender of a text who knows the recipient is then driving must do the same. Additionally, the court explained that the foreseeable risk of harm is substantial and there is relative ease in the avoidance of sending a text to a driver who the sender knows will immediately view the communication. The court concluded, "[j]ust as the public has learned the dangers of drinking and driving through a sustained campaign and enhanced criminal penalties and civil liability, the hazards of texting when on the road, or to someone who is on the road, may become part of the public consciousness when the liability of those involved matches the seriousness of the harm."

In future litigation, the imposition of this new duty will turn on a fact sensitive analysis of the evidence in each case, requiring counsel to carefully develop a detailed record during discovery not only into the relationship of the texters but the knowledge of the individual sending the text at the time of its transmission. As a result, in contrast to the decision in Kubert v. Best, where the record was not sufficiently developed, it is likely in future cases that summary judgment will be granted infrequently, if at all.

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