Appellate Division of New Jersey Imposes Limited Duty on “Remote Texters”

On August 27, 2013, the New Jersey Appellate Division addressed an issue of first impression in the State of New Jersey, and perhaps the nation. Specifically, in Kubert v. Best, a unanimous court found that a person who texts someone that is driving can be held liable for personal injuries sustained by others who are involved in an accident with the recipient driver.

Although the Kubert court refuted that it was opening the floodgates to litigation against remote texters because the duty is limited to situations where the remote texter knows or has reason to know that recipient is driving and likely to read the text while operating his vehicle, it is nevertheless anticipated that plaintiffs’ attorneys will attempt to pursue such a claim where the recipient driver has a limited policy.

In Kubert, a driver and passenger of a motorcycle each lost a leg as a result of collision with a vehicle driven by an 18-year-old driver, Kyle Best. Best had crossed the center line of the road, and struck the plaintiff’s motorcycle head on because he was distracted by a text he received from his 17-year-old girlfriend, Shannon Colonna, immediately prior to the accident.

It was undisputed that Best had violated New Jersey’s prohibition against texting while driving. Therefore, a settlement was reached between the plaintiffs and Best. However, plaintiffs subsequently brought suit against Colonna upon the basis that she aided and abetted Best’s unlawful texting. Plaintiffs alternatively argued that Colonna had an independent duty to avoid texting a person who was driving a motor vehicle. Colonna interposed a motion for summary judgment upon the basis that she was not present in the vehicle when the accident occurred, and therefore was unaware that Best was driving at the time he received her text.

The trial court granted Colonna’s motion for summary judgment and the Appellate Division affirmed. The Appellate Division agreed that there was insufficient evidence that Colonna was aware that Best was driving at the time they exchanged texts. However, the Appellate Division rejected the defendant’s claim that a sender of a text never has a duty to avoid texting a person driving a vehicle.

Rather, after conducting a “full duty analysis,” the Appellate Division concluded that a sender of a text “may” be liable if he “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.”

In reaching this determination, the dourt noted that neither New Jersey nor any other jurisdiction has dealt with this issue. Therefore, the court relied on several New Jersey cases wherein passengers of motor vehicles were held liable for accidents because they either encouraged the drivers to violate the law or failed to warn others that the driver was violating the law (e.g., drinking while intoxicated).

The court cautioned that its decision should not be construed to mean that “the mere sending of a wireless transmission” is enough to impose liability. Rather, the court emphasized that it must shown that the remote sender knew or had reason to know that the recipient was driving and likely to read the text message while driving. The court reasoned that this limitation is warranted because “the sending of a text message by itself does not demand that the recipient take action.” Stated differently, “it is the primary responsibility of the driver to obey the law and to avoid distractions.”

In short, although Kubert has given rise a to a “new” duty against remote texters in New Jersey, as indicated by Judge Espinosa in his concurring opinion, “the bar set by the majority for the imposition of liability is high and will rarely be met.” That is because it will be extremely difficult to prove that the sender knew or had reason to know that the driver was going to violate his duty to avoid distractions, such as text messages received while operating a motor vehicle.