The issue of liability related to cellular telephone usage while driving has been the focus of several recent decisions in multiple forums. We previously highlighted the decision by a Pennsylvania Court of Common Pleas judge in Xander v. Kiss, who found that the merely alleging that the tortfeasor was using a cellular telephone at the time of the accident—without anything more—is insufficient to support a claim for punitive damages. Read that article by clicking here. We also reported on a subsequent federal court decision from the District Court for the Eastern District of Pennsylvania, Piester v. Hickey, applying Pennsylvania law, which held that glancing at a cellular telephone immediately before rear-ending a vehicle was also insufficient to support a punitive damage claim. Read that article by clicking here.

The most recent case on the topic is Kubert v. Best, venued in New Jersey. The plaintiffs filed suit against a non-driver asserting a civil aiding and abetting claim for exchanging text messages with the driver while the driver was operating a motor vehicle, claiming that the non-driver either knew or should have known that Best, the alleged tortfeasor-driver, was driving. The plaintiffs alleged that the non-driver’s “texting” made her electronically present in Best’s truck, making her also at fault for the accident.

On May 25, 2012, Superior Court Judge David Rand of Morris County, New Jersey, granted the non-driver’s summary judgment motion and dismissed the civil aiding and abetting claim. Judge Rand found that the non-driver owed no duty of care to the plaintiffs under the facts of the case. Judge Rand found no precedent directly on point in New Jersey or elsewhere.

What It Means to You

This is the third consecutive issue of the C&W Journal that has reported on a new decision based on the use of cellular telephones while driving. As the laws on cellular telephone usage while driving become stricter, there will likely be a concomitant increase in the challenges to the three cases we’ve discussed and cited above. Moreover, in New Jersey, a bill entitled the “Kulesh, Kubert and Bolis’ Law” is being considered, which would create an inference that the illegal use of a cellular telephone while driving constitutes reckless driving.