Monday, September 2, 2013

New Jersey Appellate Court recognizes cause of action against someone who sends a text to someone who is driving at the time

Back in May, I wrote about a case pending in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here.) The plaintiff argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."

As I wrote back then, both plaintiff and defendant had good arguments and the issue depended on the circumstances:  "If the plaintiff can prove that the texter knew the driver was driving at the time and would pay attention to the text immediately, I have no problem recognizing a possible cause of action. Why? Because I think reasonable people would disagree as to whether a reasonable prudent person would have sent the text under those circumstances."

Now comes news that the Appellate Division of New Jersey Superior Court has decided the case holding that the person who sent the text can be liable but only if the texter knew that the recipient was driving and reading texts while driving.  Given the facts of the particular case, though, 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 read her text as he was driving or that he would respond immediately.

The court summarized its conclusion this way:
"To summarize our conclusions, we do not hold that someone who texts to a person driving is liable for that person's negligent actions ... 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."
Given what I wrote back in May, you can guess I think that is the correct decision.  The case is called Kubert v. Best and it is available here.

Having said all that, one important question that needs to be asked is whether the reasoning of the case can, will or should be extended to cover phone calls (as opposed to "texts.") 

It should be noted that the court is not imposing vicarious liability on the texter for the negligence of the driver (as has been reported elsewhere).  The court is clear that the liability imposed on the defendant is based on the defendant's own negligence (and that is why it is limited to those cases where the defendant knew the driver was driving and would likely be distracted).  This is similar to the accepted notion that a passenger could be liable for negligently distracting a driver.