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Texting to motorist creates new ground for tort liability, New Jersey court holds

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September 19, 2013

Texting to motorist creates new ground for tort liability, New Jersey court holds 

Steven M. Sellers

A New Jersey state appellate court held that liability may attach to a person who sends a text message to someone he or she knows is driving and will immediately read the text, if the driver then loses control of the vehicle and causes injury.

Distracted driving is illegal in New Jersey, and that fact fueled a state appellate court opinion on a new theory of tort liability against the sender of a text message.  In a case of first impression, the New Jersey Superior Court Appellate Division held that liability may attach to a person who sends a text to someone he or she knows is driving a motor vehicle and will immediately read the text, if the driver then loses control of the vehicle and causes injury. (Kubert v. Best, 2013 WL 4512313 (N.J. Super. App. Div. Aug. 27, 2013).)

The case arose after a 2009 crash in which a pickup truck driven by 18-year-old Kyle Best crossed the centerline and struck a motorcycle that David and Linda Kubert were riding. The plaintiffs settled their claims against Best, but they had also sued Shannon Colonna, a 17-year-old friend of Best who had exchanged texts with him moments before the crash. The trial court granted summary judgment in Colonna’s favor, and the plaintiffs appealed.

Attorney Stephen “Skippy” Weinstein of Morristown, N.J., who represented the Kuberts, developed evidence that Best and Colonna had texted each other hundreds of times on the day of the crash. Telephone records also disclosed that Best and Colonna exchanged texts while he was driving—three of them moments before the accident.

Weinstein argued that Colonna is potentially liable if a jury were to find her texting was a proximate cause of the crash “because she aided and abetted Best’s unlawful texting while he was driving, and also because she had an independent duty to avoid texting to a person who was driving a motor vehicle.” But Colonna’s lawyer successfully argued for summary judgment, contending that she was not liable “because she was not present at the scene, had no legal duty to avoid sending a text to Best when he was driving, and further, that she did not know he was driving.”

The appellate court affirmed the summary judgment in a unanimous opinion authored by Judge Victor Ashrafi, but it rejected 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.” Tracing the common law roots of liability for failure to prevent injury to another (comparing remote texting to a passenger who encourages reckless driving), Ashrafi held that while liability may lie against someone who electronically communicates with a driver and causes distraction, the evidence in the case was “not sufficient for a jury to conclude that Colonna took affirmative steps and gave substantial assistance to Best in violating the law.”

Ashrafi cautioned that it is insufficient for a plaintiff to prove that a defendant simply sent an electronic message to a motorist at the wrong time. “Whether by text, email, Twitter, or other means, the mere sending of a wireless communication that unidentified drivers may receive and view is not enough to impose liability,” he wrote. He reasoned that foreseeability of harm is essential to the analysis of liability—because it is not generally foreseeable that the receipt of a text will cause a driver to neglect the duty to obey the law, the plaintiff must also prove “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.” If the sender knows the driver will immediately view the text, “the risk is substantial, as evidenced by the dire consequences in this and similar cases where texting drivers have caused severe injuries or death,” Ashrafi added.

Judge Marianne Espinosa concurred in the result but departed from the majority’s analysis of tort liability. “In my view, traditional tort principles provide adequate guidance to determine whether liability should be imposed in such circumstances,” she wrote.

Weinstein said he was pleased with the court’s recognition of the underlying tort principles he had urged. “The issue now is whether we file an appeal to the New Jersey Supreme Court. If we do, and if they accept it, there are three options. They could affirm, reverse, or they could do what I have asked for years, which is to send me back to the trial division and give me a jury to make the determination as to whether [Colonna] knew he was driving and that he would read the text.”

Weinstein emphasized that the decision should remind parents that they can help prevent similar tragedies by telling teenagers to ask if a recipient is driving before they begin a text conversation.  “A little bit of questioning may prevent an accident and prevent these people from losing their legs, as they did [in this case],” he said.


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