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Bar News - April 16, 2014

Opinion: Text Senders Liable in NJ: A Reasonable Decision


Recently, a New Jersey appellate court, in the case of Kubert v. Best, held that the sender of a text message can potentially be liable for damages if a driver causes an accident while distracted by reading or responding to the text message.

The court described its decision as imposing a “limited duty” on the sender, meaning that if the sender “knew or had special reason to know that the recipient would view the text while driving and, thus, be distracted,” then he or she could be held liable.

Reaction to the decision from politicians and the general public was swift and largely critical. New Jersey Governor Chris Christie was the first of many to label it “stupid” and “silly.”

In fact, the decision uses well-settled and common legal principles and adapts them to address modern, technological realities. And it is not difficult to imagine New Hampshire reaching a similar conclusion.

Statistics reveal that what the New Jersey court referred to as the imposition of a “limited duty” may in fact apply in many personal injury cases that involve a driver reading or responding to a text message.

The facts of Kubert v. Best are straightforward. David Kubert was riding his motorcycle on a road in New Jersey, with his wife as a passenger. As they rounded a curve, a pickup truck traveling in the opposite direction, driven by 18-year-old Kyle Best, crossed the double-yellow centerline and collided with the Kuberts’ motorcycle, throwing them from the bike and causing them both horrific injuries. Best called 911 immediately to report the collision.

The Kuberts sued Best for negligence. During discovery, the Kuberts learned that Best had been texting another teenager, Shannon Colonna, the day of the collision. Discovery revealed that Best and Colonna exchanged several text messages in the moments leading up to the crash, which included a text by Best to Colonna roughly 16 seconds before Best called 911 to report the collision.

After learning this information, the Kuberts added Colonna as a defendant. Colonna later moved for summary judgment, arguing, in part, that she did not owe the Kuberts a duty of care, because a sender of a text message never has a duty to avoid texting a person driving. The trial court agreed.

On appeal, however, although agreeing that Colonna did not, based on the facts presented, breach a duty of care, the appeals court disagreed that one never has a duty to avoid texting another remotely. Instead, the Court imposed what it referred to as a “limited duty.”

The court’s decision was based on well-accepted principles, including an analysis of fairness and foreseeability. The court initially provided that “whether a duty exists turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.”

The court recognized the modern day reality that those in our phones’ contact lists are no more than a click of the smart phone away, which essentially places the remote sender of a text message in the seat next to the driver.

With this in mind, the court analogized to principles of passenger liability: “a passenger who distracts a driver can be held liable for the passenger’s own negligence in causing an accident. In other words, a passenger in a motor vehicle has a duty ‘not to interfere with the driver’s operations.’” The court also cited the Restatement (Second) of Torts, Section 303: “[a]n act is negligent if the actor… realizes or should realize that it is likely to affect[] the conduct of another.”

These principles provide common sense and sound support for the conclusion that if a sender of a text has reason to know that the recipient is both driving and will read the text while driving, the sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for harm resulting from the distraction. In other words, it is foreseeable that a third party may be harmed in such a circumstance.

New Hampshire follows a similarly fluid duty analysis. See Mikell v. Sch. Admin Unit #33, 158 N.H. 723, 730 (2009) (“[T]he concept of duty arises out of the relationship between the parties and protection against reasonably foreseeable harm.”). The state has already shown a willingness to impose sanctions, often severe, on drivers who engage in and become distracted by texting while driving. In State v. Belleville, the NH Supreme Court recently found that the defendant’s distraction due to reading a text message was sufficient to uphold a conviction of criminal recklessness.

Studies show that roughly 20 percent of teens readily admit to having extended, multi-message text conversations while driving. Perhaps scarier, 10 percent of parents admit to doing the same thing. Given that many people admit to both reading and sending text messages while driving, it is safe to assume that the people closest to them are aware of their habits. This may very well qualify as a “special reason” to know, sufficient to impose liability.

The result in Kubert v. Best is neither stupid nor silly. The court adapted well-settled principles to the modern, technological realities of today, and these principles are likely to be applied outside of New Jersey as well. New Hampshire’s legal landscape, at the very least, allows for the argument to be made.

Despite allegations that the duty espoused in Best is narrow and limited, given the statistics and habits of many drivers, such a duty could theoretically be imposed in far more cases than what the New Jersey court may have anticipated.

Bryan Townsend II is an associate at Gottesman & Hollis in Nashua, NH.

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