Decisions Court Finds Texting A Driver Could Result In Legal Liability

An opinion issued recently by the New Jersey Superior Court Appellate Division indicated that the Court could find someone sending text messages liable for texting a person known to be driving an automobile. In denying the appeal in Kubert v. Best and Colonna (decided on August 27, 2103) the Court reasoned that a high but identifiable bar exists when a texter has a special reason to know that a driver recipient would probably view the text message while driving. Cell phone law in New Jersey currently prohibits texting while driving and generally makes it illegal to use a mobile phone that is not "hands-free" with some limited exceptions under N.J.S.A. 39:4-97.3. An offender is subject to a fine of $100.

Texting While Driving - Remote Texter Liability

In 2009, teenager Kyle Best was driving a truck and crossed the road's center divider, crashing into David and Linda Kubert who were riding a motorcycle in the opposite direction. At the time, Best had been texting with his teenage friend, Shannon Colonna. Best and Colonna both regularly engaged in significant text messaging activities, sending an average of over 100 text messages per day. Best appeared to have sent Colonna a text message just seconds before the collision. The Plaintiffs settled with Best. But the trial court dismissed the case against Colonna on the basis that she was not present at the scene and had no legal duty to avoid sending a text message to Best, even if she knew he was driving a motor vehicle.

texting-while-driving.jpgIn denying the appeal by the Kuberts, the appellate court distinguished this case from other cases where a passenger-defendant was present in a motor vehicle and whose acts distracted the driver. In such cases, the consequences of a passenger's negligent acts of distraction are foreseeable and the passenger has a duty "not to interfere with the driver's operations." Champion, supra, 398 N.J. Super. at 118 (citing Lombardo v. Hoag, 269 N.J. Super. 36, 54 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994)). In reaching this conclusion, the court extended this notion of passenger awareness to apply to remote persons sending text messages to a driver when a "special relationship" is present. The special relationship concept was analyzed and used to determine liability in Champion ex rel. Ezzo v. Dunfee, 398 N.J. Super. 112 (App. Div.), certif. denied, 195 N.J. 420 (2008). In Champion, a back seat passenger sued the driver and his girlfriend (who was a passenger in the front seat), who knew that her boyfriend had been drinking earlier and thus had a duty to prevent him from driving. The court also found that passenger liability could exist if the passenger provided "substantial assistance" in aiding a driver's wrongful conduct, as per Podias v. Mairs, 394 N.J. Super. 338 (App. Div.), certif. denied, 192 N.J. 482 (2007).

In this case, Colonna was not present at the scene. No proof was offered to show that Colonna had known that Best was driving back from his job at the time she sent text messages to Best. Nor was Colonna found to have substantially aided Best's wrongful conduct. The court recognized that the mere receipt of a phone call or text message does not demand that the recipient take immediate action. A telephone caller or texter should be able to assume that the recipient, if driving a motor vehicle, would only read and respond to a call or text message when safe and appropriate to do so. The court noted that there was no direct New Jersey case law that addressed whether a remote person would be under a duty to avoid texting or otherwise communicating with a motor vehicle operator who might become distracted. The Court 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."

"Full Duty Analysis" to Determine Texting Liability

Public policy concerns were also cited as a factor in the limited duty that the Court found should be imposed upon texters , who would be subject the trial court's "full duty analysis" which takes into account the totality of the circumstances. The ostensible goal is that public awareness would eventually increase and innately comprehend the dangers of and liability associated with text messaging, such as has become the case with drunk driving. The third concurring judge refrained from the necessity of articulating a new duty for remote persons who send text messages to drivers, preferring to resort to the use of traditional tort principles which were described as adequate.
Legal Practice
Motor Vehicles - Speeding & Traffic Ticket
  1. New Jersey
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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