Texting While Driving Liability Now Extends To Remote Texters, According To New Jersey Appellate Court

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BY SHEKIDA A. SMITH — On August 17, the New Jersey Superior Court of Appeals held that negligence liability, which is traditionally claimed in car crashes where a texting driver is to blame, may be extended to the individual who sent the original text. The case caption is Kubert v. Best. The plaintiffs in the case, one of first impression in New Jersey, ultimately lost their final appeal due to a lack of evidence establishing that the defendant was entirely aware of the foreseeable risk of sending her text message. Nevertheless, the court concluded that “the sender of a text message can potentially be found 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.”

The opinion was the result of a civil liability suit stemming from a 2009 crash where a New Jersey teen hit a New Jersey couple. The impact severely injured the couple, who was riding a motorcycle when the New Jersey teen’s truck hit them head-on. The teen attempted to offer medical assistance to the husband and wife at the scene of the accident. However, both lost their left legs due to the collision.

Once the couple filed suit against the teen, their investigation of his activities throughout the day determined that he crashed into the couple just a few seconds after sending a text message to his girlfriend, also a New Jersey teen, with whom he had an ongoing text conversation throughout the day. Based on the teen’s telephone records, the court presumed that his outgoing text was in response to a text that his girlfriend sent him twenty-five seconds earlier. The couple ultimately settled their liability suit against the teen for the maximum amount of his $500,000 insurance policy. However, the issue arose once the couple’s suit against the teen’s girlfriend for her contributory negligence proceeded to summary judgment and appeal.

In New Jersey, drivers are entirely prohibited from using a smart phone that is not “hands-free” unless there is an emergency situation. Those who violate this law are subject to a $100 fine. The state legislature enacted the “Kulesh, Kubert and Bolis Law” for future cases where a person found to have caused serious injury to another party because he or she violated the law is ultimately subject to prosecution for assault by automobile, which is a fourth degree crime.

The New Jersey panel considered the grounds on which the plaintiffs could bring this claim for negligence liability where the defendant was not present in the car when the accident occurred. First, the court evaluated whether state law established that a duty can be imposed on the remote texter because she “aided and abetted” the driver by sending a text message. Second, the court evaluated whether a remote texter could be found to have an independent duty to not send a text message to a driver. In response to both issues, the court found that such a duty did exist. However, the court cautioned, “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.” Ultimately, the plaintiffs could not show the contingency for panel’s rule: The texter must have not only known the driver was driving, but also urged him or her to respond while driving.

The “Kulesh, Kubert and Bolis Law,” which serves as legislative backing for the Kubert opinion, conveys the state’s continued efforts to deter drivers who use their smart phones by imposing more stringent penalties for all contributors in the event that a driver causes a crash. This ultimately presents the question of whether neighboring states that have highlighted smart phone use as a major cause to automobile accidents will also adopt New Jersey’s approach.

Florida, like New Jersey, is a comparative fault state, meaning that a plaintiff may sue more than one negligent tortfeasor and leave it to the jury to apportion the appropriate percentages of fault to each defendant. However, Florida has significantly less stringent phone use laws than New Jersey and the eleven other states that ban use of a cellphone altogether. ((The eleven other states being California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New York, Oregon, Washington, and West Virginia—as well as the District of Columbia.)) This year, Florida became the 41^st state to ban texting while driving (a statute that will go into effect in 2014). Violators who have been found to cause a crash at least in part because they were using a smart phone will receive six points on their driver’s license. However, drivers are still permitted to use their phones, so long as they are using a talk-command feature or GPS. Additionally, texting while driving will be considered to be a non-moving violation, which is a lesser offense than it would be in New Jersey. Most critics of the statute argue that the law will ultimately be unenforceable because police officers will not be permitted to pull a driver over solely for texting while driving; the driver has to have committed another offense.

Notwithstanding the New Jersey court’s consensus that an individual does have a “legal duty to avoid sending text messages to one who is driving,” several factual questions remain. For example, does it matter whether the remote texter was the person who initiated the text conversation? In this case, the court weighed the fact that the driver was the initial texter as a factor in determining whether the remote texter was a willing and knowing distraction.

Further, many issues will arise in defining the remote texter’s awareness of the foreseeability of an accident occurring under the circumstances. What test will future courts use to ensure whether the sender actually knew the intended recipient was driving and also knew that the recipient would provide—or feel obliged to provide—an immediate response to his or her text message? The burden then falls on the plaintiff to provide evidence of the text’s content or behavioral knowledge to the court.

In theory, the New Jersey opinion demonstrates that legal ramifications for being a knowing and active nuisance to a driver who might possibly end up in a serious or fatal crash are not obsolete when the nuisance is “electronically present,” rather than physically present, in the driver’s car. Moreover, the message being sent by New Jersey, a state with consistently harsh laws regarding the use of smart phones in the car, is a strong one to texters who do not necessarily understand the gravity of the foreseeable risks associated with texting while driving. However, states like Florida that have implemented vaguer—and more convoluted—regulations to govern the use of smart phones while driving may not be able to take a similar stance without the foundational ban on any and all smart phone use in the car.