In an interesting case of first impression, the New Jersey Appellate Division held that the sender of a text message can potentially be liable if an accident is caused by texting if the sender of the text knew or had special reason to know that the recipient would view the text while driving and thus be distracted. Kubert v. Best, Docket No. A-1128-12T4 (App. Div., August 27, 2013)

Linda and David Kubert were grievously injured by Kyle Best, an eighteen-year-old driver who was texting while driving and crossed the center-line of the road and struck the Kuberts, who were then riding a motorcycle. Both plaintiffs lost their left legs as a result of the accident.

At the time of the accident, Best was dating seventeen-year-old Shannon Colonna. Best and Colonna texted each other many times each day. On the day of the accident, Best and Colonna texted each other sixty-two times, about an equal number of texts originating from each.

The accident occurred about four or five minutes after Best began driving home from his part-time job at the YMCA. He and Colonna exchanged text messages within minutes of his beginning to drive. Best collided with the Kuberts’ motorcycle immediately after he sent a text message in response to Colonna’s text to him. Best initiated the texting with Colonna as he was about to and after he began to drive home. As a result, Best violated the law because texting while driving is illegal in New Jersey.

The Kuberts filed a personal injury lawsuit against Best, Colonna and others. Plaintiffs settled with all defendants except Colonna. Colonna moved for summary judgment, arguing that she had no liability for the accident because she was not present at the scene, had no legal duty to avoid sending a text to Best when he was driving, and further, that she did not know he was driving. The trial judge, concluding that Colonna did not have a legal duty to avoid sending a text message to Best even if she knew he was driving, dismissed plaintiffs’ claims against Colonna.

Plaintiffs appealed, arguing that Colonna could be found liable for aiding and abetting Best’s unlawful texting while he was driving. Further, they asserted that Colonna had an independent duty to avoid texting to a person who was driving a motor vehicle. They also claimed that a jury could infer from the evidence that Colonna knew Best was driving home from his YMCA job when she texted him less than a minute before the accident.

The appeals court affirmed the trial judge dismissal of plaintiffs’ claims against Colonna. The court concluded that plaintiffs did not present sufficient evidence proving that Colonna knew that Best would view the text while driving and thus be distracted when she texted Best immediately before the accident. However, the court also recognized a new legal duty of care: that the sender of a text message has a legal 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. The appeals court summarized the new legal duty as follows:

[W]e do not hold that someone who texts to a person driving is liable for that person’s negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle. We hold that, when 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.

The court went on to explain that plaintiffs’ claims against Colonna were dismissed because they failed to develop evidence tending to prove that Colonna not only knew that Best was driving when she texted him but that she knew he would violate the law and immediately view and respond to her text.

Appellate Court Judge Espinosa wrote a concurring opinion, agreeing with the result reached by the majority, but not in the analysis of the majority opinion. Judge Espinosa did not believe it to be necessary to recognize a new legal duty of care because “traditional tort principles provide a sufficient measure for assessing the liability of a person who sends a text message to a driver…” This concurring opinion suggests that the NJ Supreme Court may agree to accept the case if an appeal is filed by plaintiffs.

The case is annexed here – Kubert v. Best