In a brow-raising opinon issued by the Superior Court of New Jersey Appellate Division this week, the court determined that a non-driving sender of text messages can potentially be liable for damages if an accident is caused by a distracted text recipient. See Kubert v. Best, No. A-1128-12T4, (N.J. Super. Ct. App. Div., August 27, 2013). In the case, the plaintiffs were injured when a texting teen crossed the median and collided with the plaintiffs’ motorcycle. The trial court dismissed a claim against the person with whom the teen was texting, a 17 year-old “remote texter,” reasoning that that the remote sender did not have legal duty to avoid sending a text message to a person who is driving. The appellate court disagreed with the trial court and concluded, under a common law negligence theory, 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.”
The appeals court acknowledged 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.” Further, the court said, “We also conclude 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.” Rather, the court said, “Additional proofs are 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.”
Interestingly, New Jersey’s texting ban makes it unlawful to read or send a text message while driving, so in order to impose liability, the sender would have to know or have reason to know that the recipient is not only driving, but that the driver will break the law and read the message while driving and become distracted. To that end, the court acknowledged, “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 result reached in this case illustrates the difficulty in applying its holding. Despite finding that a remote texter may potentially be liable, the court found that, in this case, the plaintiffs did not present sufficient evidence of the remote texter’s knowledge. Because the remote sender had only sent one text while the recipeint was driving, and the contents of the messages were not entered into evidence, there was no proof that the sender knew her message was distracting the recipient from driving.
In practice, this holding is certain to present interesting proof challenges for plaintiffs in the state with respect to whether someone “has special reason to know” that a driver will be prone to distraction. The ultimate takeaway from this case is that, if you are texting a person in New Jersey that you know or learn is driving, and that person immediately responds, stop the communication immediately. Good practice regardless of potential liability.
The full text of the opinion can be found here.