By: Michael L. Fox

It is becoming common knowledge these days that the driver of an automobile who has or causes an accident while texting on his or her cell phone can be liable for damages to an injured party. However, a recent New Jersey appellate court case has, for the first time, articulated a standard that may result in the sender of a text message (one who is not even in the automobile with the driver) being held liable along with the driver for damages from an accident.

In the New Jersey case, two individuals were seriously injured when the driver of a truck crossed the center line of a road and caused an accident while he was texting and driving. The injured parties sought to receive damages from the driver, which is typical, but also from driver’s girlfriend who had been texting the driver, even though she was not in the vehicle at the time of the accident. The lower court granted summary judgment, which means that the lower court dismissed the case against the girlfriend without it reaching trial. The appellate court in New Jersey sustained the lower court’s decision. However, that appellate court held “we do not adopt the trial court’s reasoning that a remote texter does not have a legal duty to avoid sending text messages to one who is driving.”

The New Jersey court then examined the duties imposed by common law and the standard of conduct one person must have toward another person. The appellate court recognized that the injured parties in the case wanted a duty of care imposed upon the girlfriend under a theory that she had aided and abetted the driver’s violation of law when the driver used the cell phone to text while driving. The court also acknowledged that there is case law that has held passengers in a motor vehicle to have an affirmative duty to fellow passengers and the driver in terms of a standard of care and behavior in the vehicle.

The court ultimately held that the driver’s girlfriend did not have a special relationship with the driver by which she could control his conduct in the vehicle, nor was there evidence in the record that the driver’s girlfriend had actively encouraged him to text while he was driving. Therefore, the court held “the evidence in this case is not sufficient for a jury to conclude that [driver’s girlfriend]took affirmative steps and gave substantial assistance to [driver] in violating the law. Plaintiffs produced no evidence tending to show that [driver’s girlfriend]urged [driver] to read and respond to her text while he was driving.”

However, the court did not stop there, and continued: “We view [precedent]as appropriately leading to the conclusion that one should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving. Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.” In continuing, the court examined the foreseeability of the risk of harm. The court reasoned that it is not always foreseeable that a driver would immediately review a text message or other message sent to his or her cell phone upon receipt. The court did state however, “if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction. […]When the risk of harm is that posed by third persons, a plaintiff may be required to prove that defendant was in a position to ‘know or have reason to know, from past experience, that there [was] a likelihood of conduct on the part of [a]third person[]’ that was ‘likely to endanger the safety’ of another.”

The New Jersey appellate court basically concluded that there is a limited duty that can be imposed on a sender if that duty is supported by an analysis along the lines of those issues outlined by the appellate court. The court held “When the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle. As we have stated, a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same.”

Again, the court in this particular case did not find the driver’s girlfriend who sent the text from a remote location to be liable to the injured parties. But, “[j]ust as the public has learned the dangers of drinking and driving through a sustained campaign and enhanced criminal penalties and civil liability, the hazards of texting when on the road, or to someone who is on the road, may become part of the public consciousness when the liability of those involved matches the seriousness of the harm…. we do not hold that someone who texts to a person driving is liable for that person’s negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle.” But, again the court stated: “We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.”

The court established a framework that, over time, may be cited by courts in other jurisdictions to hold the senders of texts to drivers liable for accidents caused even though that person is not in the car with the driver. This is yet another reason to know who it is that you are texting and what it is they are doing when you are texting them, and take the appropriate caution and care.

If you wish to read more about this particular decision in New Jersey, the case is Kubert v. Best, 75 A. 3d 1214, 432 N.J. Super. 495 (2013).