United States: Third Party Liability For Sending A Text

Last Updated: November 5 2013
Article by Thomas C. Regan

I'm sure you've all seen the campaigns like "It Can Wait," as well as the common theme storyline on various television shows, where the teenager is involved in an accident because she was texting. In real life, states have begun legislating specifically to combat the scourge of distracted driving due to texting. New Jersey's treatment of the problem has some teeth and is continuing to develop.

Initially, there is a moving violation component. It is illegal in New Jersey to use any device while driving unless it is both hands-free capable and is being used in a hands-free manner. Most new vehicles and new devices have applications that allow you to dial and some allow you to text handsfree with voice recognition software. Learn to use them. Violation of this statute carries a $100 fine. N.J.S. 39:4-97.3.

Secondly, there is a criminal component. If you cause injury in an accident while you are using a cell phone, you can be found guilty of a fourth-degree crime – assault by auto – which can carry jail time. N.J.S. 2C:12-1(c)(1). The criminal violation is not automatic, but rather violation of the moving violation statute creates an inference of the assault by auto statute.

Now case law has expanded civil penalties beyond the driver to the person texting the driver. On August 26, 2013, in Kubert v. Best, the Appellate Division handed down an opinion holding that a duty exists on the part of the person sending the text. Additionally, that duty is breached if the texter knows or has special reason to know that the recipient is driving and will read the text while driving, thus being distracted. While one might expect the defendant in that case to appeal the decision, it is unlikely. In an interesting twist, the Appellate Division also found that the plaintiff in that case failed to show that the defendant knew the driver would be distracted.

In Kubert, a 17-year-old teenage girl, Shannon Colonna, sent a series of texts to her friend, 18-year-old Kyle Best, who was in the process of leaving his part-time job and driving home. While rounding a curve, Best crossed the center line of traffic and collided with the plaintiffs, who were riding a motorcycle in the opposite direction. Each plaintiff sustained severe injuries, including amputation.

During discovery, plaintiffs' counsel developed information that the timing of the text messages coincided with the happening of the accident. The last text message from the driver to Colonna was sent just 17 seconds before the 911 call from the same cell phone. The court inferred that the text was in response to the prior text, received 25 seconds earlier.

The matter was settled with Best. However, Colonna proceeded to file a motion for summary judgment, arguing that no duty existed because she was not in the vehicle at the time of the accident and did not know Best was driving when she was texting him. She further argued that even if a duty existed, she did not breach that duty. Plaintiffs argued that Colonna was "electronically present" in the vehicle, and that her distraction of the driver constituted a breach of a duty proscribing such distraction. The trial court dismissed the claims against Colonna, holding that she had no duty to avoid sending text messages to Best, even if she knew he was driving.

The Appellate Division disagreed with the trial court's interpretation of the duty. In a 40-page opinion, the Court held that a duty does exist on the part of a person sending a text, but the standard for that duty is high. First, the Court held that the "texter" must know or have special reason to know that the recipient of the text is driving. However, simple evidence that the sender knew that the recipient was driving at the time the text was sent is insufficient. The Court also held that the sender must either know or have special reason to know that the driver would read the message while driving and, therefore, be distracted by it. In so holding, the Court relied on opinions within New Jersey and other states that essentially establish that liability exists only if affirmative steps are taken that will create it.

The Court went further still to ensure that its point on this topic was not missed. Although not argued by either side, the Court discussed the Restatement view that a passenger in a vehicle has a duty to avoid distracting the driver unnecessarily. Restatement (Second) of Torts, §303. The Court analogized that such liability would extend to a passenger who held a cell phone in front of the driver, encouraging the driver to distract his attention from the road. However, the Court quickly noted that simply sending a text message to a driver is not the same as holding the text message in front of the driver's eyes. It remains the responsibility of the driver to not be distracted.

Although the Court took great pains to avoid opening the flood gates of litigation by extending potential liability to anyone with a cell phone (read: pretty much everyone), we wonder whether the Court has not really done just that. When the New Jersey Supreme Court decided the standard for circumventing the exclusive remedy provision of the Workers' Compensation Act, it tried to make very clear that the standard was extremely high. The bar reacted by filing a flurry of cases directly against employers, claiming that the facts supported such a finding. We expect nothing less here. Add to that the certain coverage attacks from homeowners insurance carriers, and the Brave New World of everexpanding liability and litigation continues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions