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Text Message Sender Liability

Text Message Sender Liability

The Transportation Newsletter
(January 9, 2014)

The dangers associated with sending/reading text messages while driving are well known. Anti-texting while driving statutes are ubiquitous and widely accepted as necessary to rectify the perils of driving while texting. Now, a New Jersey appellate court has extended responsibility for accidents arising from driving while texting to the next level by recognizing that the sender of a text message may be liable for damages if that person sends a message to a person known to be driving and that the text message will be read. The case is Kubert v. Best, No. A-1128-12T4 (N.J. Super., August 27, 2013). The plaintiffs, Mr. and Mrs. Kubert, were riding their motorcycle when they came around a corner and were struck by a pick-up truck which crossed the center line and was driven by the 18 year old defendant, Kyle Best. Id. at 5. The Kuberts suffered grievous injuries as a result of the accident. Id. at 2. The evidence showed that Best was sending and receiving text messages from a friend, Shannon Colonna, at the time of the accident. The Kuberts brought suit against Best and Colonna. With respect to Colonna, the Kuberts alleged that Colonna owed a duty to avoid testing to a person who is driving a motor vehicle. Id. at 10.

The evidence showed that on the day of the accident, Best and Colonna texted each other sixty-two times with an equal number originating with each. Id. at 6. At the time of the accident, Best had just left work and was driving home. At approximately 5:48:14 p.m. Colonna sent Best a text message that was received at 5:48:23 p.m. Best then responded by sending a message at 5:48:58 that was received by Colonna at 5:49:07 p.m. At 5:49:15 p.m., 17 seconds after sending his last text message, Best called 911 to report the subject accident. Id. at 8. During this 17 second interval, the Court noted that Best would have stopped his vehicle, observed the injuries to the Kuberts, and dialed 911. Id. at 9. The Court deduced that Best collided with the Kuberts immediately after sending his text message at 5:48:58 p.m.

As in many jurisdictions, New Jersey prohibits texting while driving. Id. at 2. See also, N.J.S.A. § 39:4-97.3. At the trial court level, the Kuberts' claim against Colonna was dismissed on a motion for summary judgment; the trial court ruled that a remote texter does not have a legal duty to avoid sending text messages to one who is driving. Id. at 5. The Kuberts appealed this ruling; the issue on appeal was whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text. Id. at 4. The New Jersey Court of Appeals held 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 special reason to know that the recipient would view the text while driving and thus be distracted." Id. at 4.

On appeal, the Kuberts argued that the Colonna did owe a legal duty setting forth two theories: (1) that Colonna aided and abetted Best's unlawful texting while Best was driving; and (2) that Colonna owed an independent duty to avoid texting to a person who was driving a motor vehicle. Id. at 10. The Appellate Court rejected the argument that Colonna and Best were acting in concert in exchanging text messages on the grounds that the failure to prevent wrongful conduct by another (Best) is ordinarily not sufficient to impose liability, particularly where there is no active encouragement that the recipient read the text message and respond immediately. Id. at 17-18. A sender (Colonna) of a text message cannot be held liable for sending a text simply because some recipient might use his cell phone unlawfully and become distracted while driving. Id. at 21. However, on the second issue, the New Jersey Court of Appeals 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." Id. at 11.

The Court's conclusion is an extension of existing law recognizing that"a passenger who distracts a driver can be held liable for the passenger's own negligence in causing an accident." Id. at 23. This"distracting" conduct does not constitute aiding and abetting a driver's negligent conduct, but constitutes direct negligence by the sender of the text message. Id. The key for imposing a duty on a sender of a text message is that the sender knows, or has special reason to know, that the driver will in fact be distracted and drive negligently as a result of the sender's actions. Id. at 24. Under such circumstances, the sender of a text message has knowingly engaged in distracting conduct and the imposition of legal duty is warranted due to the dire consequences that may flow from such conduct. Id. at 25, 27.

The New Jersey Court of Appeals affirmed the ruling of the trial court on this issue as the Kuberts failed to present sufficient evidence to establish that Colonna had knowledge that her text message would in fact distract Best immediately before the accident. Id. Notwithstanding, individuals, drivers (personal and commercial), and anyone who communicates via text messaging should heed the reasoning and result of Kubert. The use of text messaging is no longer the sole province of teenagers; the use of text messaging by individuals of all ages continues to increase, coupled with its ever-expanding use in a commercial setting. Although New Jersey is the first jurisdiction to recognize a legal duty on the part of an individual sending a text message, consideration of this issue by other jurisdictions is a virtual certainty with significant ramifications for both individuals and businesses alike.

Click here to view the full Winter 2014 Edition of the Transportation Newsletter.

Marc C. Tucker
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