Text Message Sender May Face Liability for Driver's Accident
By Pamela Sakowicz Menaker, Litigation News Contributing Editor – November 27, 2013

A person who sends a text message when she knows the recipient is driving may be liable for negligence if the driver causes harm while texting in response, according to a New Jersey appellate court, in the first case of its kind.  In Kubert v. Best [pdf], the New Jersey Superior Court of Appeals expanded the concept of duty for texters by identifying specific conditions under which the sender of the original message may be held responsible, along with the driver, for an accident caused by the distracted driver.

Sender Has a Qualified Duty Not To Send Text to Someone She Knows Is Driving
A couple on a motorcycle was on a highway when a driver in a truck crossed the center line and struck them. The truck driver had been texting his teenage girlfriend all day, and the last text was 25 seconds before the crash. The motorcycle riders each lost their left leg. The couple settled with the driver for his insurance policy limits of $500,000, but continued the case against his girlfriend. The trial court ultimately granted summary judgment in her favor, finding that there was not enough evidence that the teenage texter knew her boyfriend would look at the messages while driving and be distracted.

The appellate court affirmed, but not before articulating what may be a new standard for the duty of care, holding:  “We affirm the trial court’s order dismissing plaintiffs’ complaint against the sender of the text messages, but 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.”

Noting that “[w]e have recognized that a passenger who distracts a driver can be held liable for the passenger’s own negligence in causing an accident[],” the court extended its analysis to conclude 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 is setting forth a special relationship. The court is not saying there is going to be liability every time,” says Saba B. Hashem, Boston, MA, immediate past chair of the ABA TIPS  Automobile Law Committee and a member of the Section of Litigation.  “It’s a public policy message,” Hashem notes.

A High Bar for Liability or an Over-Expanded Duty?
“The court is not getting out of control,” says Hashem. “The court spelled out a very limited duty from a tort perspective based on the defendant’s knowledge of the situation.”  In analyzing the defendant’s conduct, it held a limited duty existed and found that the remote text sender had to knowingly disregard a foreseeable risk.  Hashem says that although he “wished the court would have more clearly defined what texting ‘immediately’ before the accident meant, liability will be determined on a case-by-case basis in the future.”

Others agree that the New Jersey rule is not overbearing and perhaps is even overdue.  Robert C. Rodriguez, San Diego, CA, current chair of the Automobile Law Committee and a Section of Litigation member, also notes that the New Jersey appellate court was “really cautious” so as “not to open the floodgates of litigation.”

“The court got it exactly right, says Rodriguez, “in calling for a ‘high showing’ that the plaintiff must demonstrate that the sender of the test message must know or ‘has a special reason to know’ the recipient is driving as well as know the texting habits of the driver who will likely respond before finding an independent duty on the part of the remote texter.”  The court found that such conduct amounts to “aiding and abetting a driver’s wrongful conduct.”

Although the court did not discuss the contents of the specific text messages in the New Jersey case, both Hashem and Rodriguez agree that in future cases “that may play a larger role in determining liability.” For example, if the sender asks for an immediate response and a crash occurs, that could give rise to liability for the sender under the New Jersey opinion.

It is unclear how future courts will interpret this decision in cases involving delivery drivers. “If a person is waiting for a delivery and texts the driver or asks the company to do so, there could be some trouble,” Rodriguez says.  He suggests that lawyers “should advise their clients accordingly.” 

“The type of buzz that this case has generated across the country means that this is not the last time a court or legislature will be dealing with this issue,” Rodriguez observes. “New Jersey has tapped in to a real issue.”

Keywords: texting, driving, negligence, liability, cell phone, duty

Circuits Split on Indispensable Parties
Third-Party Documents Admissible as Business Records