Day on Torts
The sender of a text message to a person faces potential liability if the recipient of the message negligently causes a wreck injuring others, according to a recent opinion of the Appellate Division of the Superior Court of New Jersey.
In Kubert v. Best, A-1128-12T4 (N.J. Sup. Ct. App. Div. Aug. 27, 2013), the Kurberts were seriously injured when a young drivers who was texting while driving crossed the center-line of the road and hit them. Their case against the young driver was settled, but the Kuberts appealed a decision of the trial court that dismissed their claims against the young driver’s friend who was texting the driver much of the day and sent a text message to him immediately before the accident. Texting while driving is illegal in New Jersey.
No other appellate court has addressed this issue: whether one who is texting from a location remote from the driver of an automobile can be liable to persons injured because the driver was distracted by the text. The court answered the question "yes," 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 court issued a 30-page opinion on the issue, which employs duty analysis to arrive at the conclusion that a duty should be imposed on the sender. To reach its result, the majority of the court discusses the duty of a passenger in a vehicle at great length.
In Kubert, the court held that no liability could be imposed against the text sender in the case because there was no evidence that the sender was aware the driver would violated the law and read her text as he was driving or that he would respond immediately to her text. The court would not permit the jury to infer a breach of duty simply because there was evidence of multiple texting at other times when the driver was driving.
The dissent criticizes the path taken by the majority in finding the existence of a duty and would not have imposed any duty on the sender.
One can debate whether or not the sender should have a duty under the law, but no one can debate that it will be extremely difficult to survive a motion for summary judgment in this type of case absent an admission by the sender, defendant driver or eyewitness testimony supporting the breach of the narrow duty imposed by this decision. Moreover, my guess is the Supreme Court of New Jersey will hear this case, and thus the law on this subject is in its infancy.
Thus, those who proclaim that the sky is falling (e.g. here, here ) either have not read the opinion or have an agenda that is quite transparent.