Remote texter's liability for accident which distracts driver

April 05, 2014 (Press-News.org) Remote texter's liability for accident which distracts driver

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In Kubert v. Best, a majority opinion by the Superior Court of New Jersey, Appellate Division, held that a remote sender of text messages has a duty under New Jersey law not send a text to a person who is driving a motor vehicle if the texter knows, or has a special reason to know, that the recipient will view the text while driving. The appellate panel stated that a remote texter can be held liable for injuries sustained in a car accident caused by a driver who was distracted by the text. However, in this particular case, the majority ruled that the trial court's summary dismissal of the plaintiffs' claims against the defendant, a remote texter, was proper due to a lack of sufficient proof of the defendant's breach of that duty.

Texting while driving is prohibited under New Jersey law. Using a cell phone that is not "hands-free" while driving is also prohibited except in some emergency situations. As a result of this case and other similar cases, the New Jersey legislature enacted a criminal statute known as the "Kulesh, Kubert, and Bolis Law," which imposes penalties for the crime of assault by auto where drivers injure others while distracted by using a cell phone.

Background

In 2009, the plaintiffs sustained serious injuries while riding on a motorcycle around a curve when the 18-year-old driver of a pick-up truck crossed the double center line of the road, entered the plaintiffs' lane of travel, and struck the plaintiffs and their motorcycle. Text message records indicated that the driver's collision with the motorcycle occurred immediately after the driver sent a text message. According to the court's decision, it can be inferred that this text was sent in response to a remote text that was sent by the defendant, a 17-year-old female friend of the driver, which the driver received 25 seconds earlier. The driver had initiated the texting with the defendant as he was leaving work and within minutes after he began to drive home.

The driver was no longer a defendant in the suit, having previously settled with the plaintiffs. The trial court summarily dismissed the plaintiffs' claims against the defendant, deciding that she had no legal duty to avoid sending texts to the driver, even if she knew he was driving. The plaintiffs appealed the dismissal.

The ruling of the Appellate Division

The appellate panel determined that mere proof that the sender sent a text to a specific identified recipient is not sufficient to establish liability, even if the sender was aware that the recipient was then driving. Additional proof is needed demonstrating that "the sender also 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 this case, said the appellate panel, even if one inferred that the defendant's message sent 25 seconds before the accident required a response, that act alone did not, by itself, constitute "active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law." Proof was needed to show that the defendant knew the driver was driving and would violate the law and immediately view and respond to her text.

Individuals who have sustained injuries in a motor vehicle accident are urged to seek the advice of a competent attorney, experienced in these matters, to protect their legal rights.