Kubert v. Best, 2013 WL 4512313 (App. Div. 2013), an August 27, 2013 New Jersey Appellate Division decision approved for publication, is the first known instance in the United States of a court finding a basis for remote texter liability for motor vehicle accidents.  The Appellate Division held that a sender of a text message has a duty to refrain from sending a text to a person who the sender knows, or has special reason to know, is driving at that time and is likely to read the text while driving.

Although the court acknowledged that it is “the primary responsibility of the driver to obey the law and to avoid distractions,”  the court also observed that New Jersey law imposes a duty upon motor vehicle passengers to not interfere with the driver’s operations.  The Kubert court therefore held that, like a passenger must avoid distracting the driver, the “remote sender of a text who knows the recipient is then driving must do the same.”

It is well established that foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists.  In holding that a limited duty should be imposed on the remote sender of a text, the Kubert court reasoned as follows:

“It is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text. Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender 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 also found that when the sender texts a person who is driving, knowing that the driver will immediately view the text, that sender disregards the foreseeable risk of harm to the public – a substantial risk, as evidenced by the dire consequences where texting drivers have caused severe injuries or death.  Thus, the Appellate Division explicitly 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.”

In the case at bar, plaintiffs, Linda and David Kubert, were grievously injured by an eighteen-year-old driver, Kyle Best, who was texting while driving and crossed the center-line of the road, striking plaintiffs and their motorcycle.  The trial court dismissed plaintiffs’ claims against the driver’s seventeen-year-old friend, Shannon Colonna, who was texting the driver most of the day and sent a text message to him immediately before the accident.

The Appellate Division ultimately held that summary judgment was properly granted dismissing plaintiffs’ claims against Colonna, finding that the evidence of extensive texting between Best and Colonna at other times was not sufficient to prove a breach of Colonna’s limited duty.  The court found that plaintiffs failed to develop evidence tending to prove that Colonna not only knew that Best was driving when she texted him, but also that she knew he would violate the law and immediately view and respond to her text.

Despite the outcome of this case, the remote texter’s limited duty is clear. Texters and drivers – take note.

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