In an apparent first-of-its-kind decision in the nation, a New Jersey appellate court has held that the sender of a text can share in liability if the person knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving.

 

New Jersey’s Appellate Division has created this limited duty in its ruling in the matter of Kubert, et al v. Best, et al (Docket No. A-1128-12T4), which was approved for publication on August 27, 2013. The case resulted from a September 21, 2009 motor vehicle accident involving plaintiffs Linda and David Kubert, who were seriously injured by the negligence of defendant Kyle Best. Defendant Best was texting while driving a pick-up truck and crossed a center double line around a curve striking a motorcycle occupied by the plaintiffs that had been traveling in the opposite direction. As a result of the accident, each plaintiff lost a left leg.

 

Settlement occurred with the driver; however, the plaintiffs also filed claims against defendant Shannon Colonna, who the plaintiffs claimed was text messaging with defendant Best most of the day, including a text sent immediately before the accident. The evidence revealed that defendant Best’s cell phone records showed 62 texts with defendant Colonna on the day of the accident. The trial court dismissed the claims against the text sender on summary judgment; the plaintiffs appealed and argument was held this past May. Judge Victor Ashrafi wrote the decision for the three-judge appellate panel.

 

The Appellate Division specifically stated that it was not simply holding that a sender of texts was liable even if the sender knew that the recipient was driving. Weighing such factors as foreseeability of risk and the public interest, the court determined that one is liable for one’s own actions, even from a remote location, if one urges a driver to look at a distracting object (such as a text) instead of the road and knows or has special reason to know that the driver will be distracted. As per this standard, the Appellate Division found that there was insufficient evidence to find that defendant Colonna had such knowledge (namely that defendant Best would read her text or respond immediately while driving) and affirmed the trial court’s granting of her summary judgment motion. However, the court explained that there could be factual circumstances that would impose liability on a remote texter. Arguably, the court’s holding would apply to other forms of electronic communications, such as email or social media messaging.

 

New Jersey has some of the toughest cell phone laws in the nation. In 2003, New Jersey enacted its cell phone law (NJSA 39:4-97.3), making it unlawful to drive while using a cell phone unless it was a hands-free wireless telephone or in the case of an emergency. Only four years later, in 2007, New Jersey’s cell phone law added numerous amendments, which went into effect during 2008. Specifically, the definition of “use” was amended to ban both text messaging and the sending of an electronic message while driving. The law also applied to a new category known as an electronic communication device (specifically excluding an amateur radio), but allowed use if such a device was hands-free. More importantly, the 2007 amendments made talking or texting on a hand-held cell phone while driving a primary offense. Prior to 2008, a driver could only be cited for violation of the cell phone statute if another traffic offense had been committed. Additionally, since 2012, a New Jersey jury can infer reckless driving if there was proof the driver was distracted while using a cell phone and causing injury to others resulting in a criminal conviction of assault by auto (a fourth degree crime). [NJSA 2C:12-1(c)(1)]

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What It Means to You

This published decision is getting national attention and will likely result in more extensive discovery in auto negligence cases, not to mention insurance coverage disputes. Cipriani & Werner has an aggressive team of auto negligence defense and coverage attorneys. For more information, please contact Matt Mitchell at mmitchell@c-wlaw.comor John Kaelin at jkaelin@c-wlaw.com.