Kubert v. Best and Colonna, Superior Court of New Jersey Appellate Division, Docket No. A-1128-12T4
Plaintiffs were seriously injured by an 18-year-old driver who was texting while driving and crossed the centerline of the road. The plaintiffs’ clams for compensation from the young driver had been settled and were no longer part of the pending lawsuit. Plaintiffs, however, appealed the trial court’s dismissal of their claims against the driver’s 17-year-old friend who was texting the driver much of the day and sent a text message to him immediately before the accident.
During the 17-year-old’s deposition, she stated, “I’m a young teenager. That’s what we do.” She also testified that she generally did not pay attention to whether the recipient of her texts was driving a car at the time or not.
The trial court reviewed the evidence and the arguments of the lawyers, conducted independent research on the law and ultimately concluded that the 17-year-old texter did not have a legal duty to avoid sending a text message to the driver of the vehicle, even if she knew he was driving at the time. The trial judge dismissed the plaintiffs’ claims against the 17-year-old texter.
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.
The New Jersey Court of Appeals did not hold that someone who texts to a person driving is liable for that person’s negligent actions; the driver, as indicated by the Court, bears responsibility for obeying the law and maintaining safe control of the vehicle. The Court held 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, in the indicated case, reviewed the evidence and determined that such evidence was not sufficient for a jury to conclude that the remote texter took affirmative steps and gave substantial assistance to the driver in violating the law. 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. 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, as stated by the Court. The Court of Appeals concluded that liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving. In the particular case at hand, the Court of Appeals concluded that additional evidence was necessary to establish the sender’s liability, namely, that the sender also knew or had special reason to know that the driver would read the message while driving AND would thus be distracted from attending to the road and the operation of the vehicle.
The Court indicated that, similar to a call to voice mail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender, according to the Court, should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction. The Court indicated that when the sender has actual knowledge or special reason to know, from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver. When the sender texts a person who is then driving, knowing that the driver will immediately view the text, the sender has disregarded the attendant and foreseeable risk of harm to the public and should be held accountable.
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