As accidents, injuries and deaths mount and studies showing the extreme danger of texting while driving are publicized, we should all be coming to the logical conclusion that it’s a very bad idea to text while driving. Pennsylvania has outlawed it, as have our neighboring states.

So, it should not surprise you that if you cause an accident while texting while driving, you are likely to be sued if anyone is injured or killed as a result. But, what might surprise you is that there may also be legal liability for the person on the other end of the texting conversation who was not driving, but was texting with the driver.

In a landmark case in New Jersey, Kubert v. Best, decided on August 27, 2013, the Appellate Division of the Superior Court held that the sender of a text message who was communicating with a driver who caused an accident may potentially be liable to someone injured or killed by the driver who received the text.

In the Kubert v. Best case, Kubert and his wife were riding on a motorcycle and rounding a curve when Best crossed the centerline in his pick-up truck and struck them head-on. The Kuberts were seriously injured and sued Best for negligent driving. During the litigation, the Kuberts’ attorney uncovered Best’s cell phone records, which showed dozens of texts between him and his girlfriend, Colonna, including a series of text messages which occurred just before Best called 911 after the collision. Specifically, the phone records showed that Best texted Colonna while he was in the parking lot immediately after work, and then there were three text messages which appeared to have taken place while Best was driving, two from Best to Colonna and one from Colonna to Best. However, there was no proof that Colonna knew that Best was driving while he was texting.

At the time of the accident, New Jersey law prohibited texting while driving and subjected offenders to fines and penalties. In addition, violating a criminal statute could make a driver liable for Negligence and subject to a civil lawsuit if an accident resulted from the illegal behavior. As such, the Kuberts’ legal claim against Best was very strong in that it was clear that he was violating the law because he was texting while driving, and equally clear that this behavior distracted him and led to the head-on collision and the Kuberts’ injuries.

The twist in the case was that, after the Kuberts’ attorney found out that Colonna had been texting with Best just before the accident, he sued Colonna for Negligence, alleging that she aided and abetted in Best’s violation of New Jersey law when he was texting while driving and that Colonna’s behavior was a contributing cause of the accident and injuries.

In analyzing this case of first impression, the Superior Court first had to determine whether Colonna owed a legal duty to the Kuberts. A duty is an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another. New Jersey precedents had held that whether a person owed a legal duty requires an inquiry which identifies, weighs and balances several factors, including the relationship of the parties, the nature of the risk of the activity, the opportunity and ability to exercise care to prevent danger and the public interest in creating a legal duty. In analyzing whether it would be proper to hold that there is a legal duty not to text someone who is driving, the court offered an analogy to justify its conclusion that such a duty could exist. The court determined that it would be reasonable to hold a passenger liable for causing an accident if the passenger obstructed the driver’s view of the road by holding a piece of paper in front of the driver’s face and urging the driver to look at it, or held a cell phone with a text message or a picture in front of the driver’s eyes. Such conduct would be dangerous, so the passenger should have a legal duty to refrain from doing it.

With regard to the issue of texting, the court found that it is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text. The court noted that, like making a cell phone call to someone, the sending of a text message by itself does not demand that the recipient take any action. As such, under most circumstances, the text sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so. However, if the sender knows that the recipient is driving and will read the text immediately, then the sender has taken a foreseeable risk in sending the text, has knowingly engaged in distracting conduct, and it is not unfair to hold the sender responsible for the consequences of the distraction.

Ultimately, the holding of the Superior Court, which becomes part of New Jersey common law, was as follows:

We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.

Luckily for Colonna, though, the Superior Court found that there was insufficient evidence that she knew, or had special reason to know, that Best would read her text while driving, so that the Kuberts’ legal claims against her were dismissed.

Although the Kubert v. Best Decision is binding only in New Jersey, as a Pennsylvania Personal Injury and car accident attorney, I believe that the reasoning behind the Decision is compelling and that the holding may be adopted in other states, maybe even in Pennsylvania. Accordingly, people everywhere should be careful about using cell phones while they drive and communicating with drivers via cell phone or text in order to avoid potential legal liability.

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