No Texting Someone Who You Know Is Driving – It’s The Law

A New Jersey Appellate Court recently established potential legal liability for anyone that knowingly sends a driver a text message. In Kubert v. Best, the plaintiffs were seriously injured when their motorcycle was struck by a truck. The 18 year old driver of the truck had been texting with a young lady that he was “seeing” in the seconds before the impact. The accident was the result of the truck crossing the center line and striking the motorcycle.

The plaintiffs filed suit not only against the driver but also the young lady that was texting with him in the minutes and seconds before the accident. The trial court found that the young lady did not have a duty to the plaintiffs. However, the appellate court disagreed and held “the sender of a text message can potentially be 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.” Thus, the court established potential legal liability for the sender of text messages. Factually, the plaintiffs were not able to develop evidence tending to prove that the young lady not only knew her co-defendant was texting, but that she knew he would violate the law and immediately view and respond to her text. (Texting while driving is illegal in New Jersey.) Thus, she was granted summary judgment.

Given this new theory of liability against the sender of text messages, the number of parties involved and discovery burdens on those parties will increase where evidence establishes texting in relation to an accident. Companies must be aware that their policies and procedures should include provisions to avoid vicarious liability for senders of text messages. Given the publicity this case is receiving (lead story on CNN on 8/29/13), companies not only in New Jersey but other states as well should prepare to deal with these issues. A copy of the court’s opinions can be found here.


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