Updated August 13, 2018

Article by Daniel A. Levy, Esq.

Texting while driving is a big problem in New Jersey and around the entire country. In New Jersey, the state is passing new laws making stiffer penalties for texting while driving. Certainly, if a driver is distracted while texting and causes a car accident, the driver will be liable. However, what about the person sending the text messages to the driver? Would that person be responsible?

If You Text a Driver and Cause an Accident, You May Be Sued

Generally speaking, when a person sends a text message to another person, they don’t know or expect that the recipient will read the text while driving and cause an accident. In those general situations, the law has never found the sender of the text message to be liable for an accident. This is true for a few reasons: First, negligence is never presumed by the mere happening of an accident; the plaintiff has the burden of proving negligence. Proving that the sending of the text message was negligent is nearly impossible in most cases. Second, a defendant is never negligent unless he owed the plaintiff a duty. And people do not owe a general duty to everyone on earth. There must be a causal link between the defendant and the plaintiff. Third, the activity of the defendant must proximately cause the accident. That means that the type of accident and injury sustained must be something that is reasonably foreseeable and potentially one of the natural consequences of the defendant’s activity. It cannot be remote or negligible cause of the accident and/or injury. So generally speaking, a person cannot reasonably expect that sending a text message will cause a car accident and injure people. And the law would not hold them to have a general duty to all people on the roadways because they aren’t driving and have no reason to know that the recipient is driving and reading the text.

But what about the situation where a person KNOWS that they are sending text messages to a driver, and they know that the driver is reading them and responding while driving? Is that person partially liable if an accident occurs? In a case of first impression, Kubert v. Best, the New Jersey Appellate Division recently held that such a person may be liable for the accident. The Court stated:

We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.

Again, this is a very narrow set of circumstances, and the plaintiff will have a lot to prove to satisfy this burden. In this case, Best’s cell phone record showed that he and his girlfriend Colonna texted each other sixty-two times on the day of the accident, about an equal number of texts originating from each. They averaged almost fourteen texts per hour for the four-and-a-half hour, non-consecutive time-span they were in telephone contact on the day of the accident. He punched out of work at 5:41. A minute later, at 5:42, Best sent a text to Colonna. He then exchanged
three text messages with his father, testifying at his deposition that he did so while in the parking lot of the YMCA
and that the purpose was to notify his parents he was coming home to eat dinner with them. Best and Colonna exchanged several text messages during the time period while Best was driving, and moments before the 911 call reporting the crash.

The Court held that the sender of the text messages could be held liable, but they also held that the plaintiff failed to produce sufficient evidence to cause a rational jury to conclude that Colonna knew or expected that Best would read the texts while driving. We do not know what was actually said in those text messages. Those records were gone. The court also had no other evidence, like witnesses or admissions, to allow them to conclude that Colonna knew that Best would text and drive. So in this case, the Court held a theoretical defendant liable, but also dismissed this specific defendant due to insufficient evidence.

Regardless of one’s personal views on liability in this context, it is an interesting case, to be sure.

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