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Liable for texting a driver? Not new, not remarkable, and what else?

The recent case of Kubert v. Best, (August 27, 2013) in New Jersey has caused a great stir:  The facts of the case are, essentially, that the plaintiffs were “grievously injured by an eighteen-year-old driver who was texting while driving and crossed the center-line of the road.”  New Jersey prohibited texting while driving at the time (N.J.S.A. 39:4-97.3).  The underlying claims against the driver were settled, but the Plaintiffs appealed the dismissal of their claims “against the driver’s seventeen-year-old friend who was texting the driver much of the day and sent a text message to him immediately before the accident.”  In its opinion New Jersey’s three-judge Court of Appeals panel decided, with a concurring opinion but no dissenting opinion, that “when the sender ‘has actual knowledge or special reason to know,’ … from prior texting experience or otherwise, that the recipient will view the text while driving, the sender has breached a duty of care to the public by distracting the driver.”  Contrary to popular belief, the texter was not held liable in this case, and the dismissal of claims against her was upheldThis despite the fact that :

We are not persuaded by plaintiffs’ arguments [that the defendant “aided and abetted” the unlawful texting while driving or that a jury could infer defendant knew the driver was texting and thus that she violated an “independent duty to avoid texting to a person who was driving”] as stated, but we also reject defendant’s argument that a sender of text messages never has a duty to avoid texting to a person driving a vehicle.  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.  But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident.

While some have accused the court of “inventing a new form of liability,” the fact is that the Plaintiff lost, and, in a well-reasoned opinion citing numerous cases, the court merely applied and restated the law.  As quoted by the court, “An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.”  Restatement (Second) of Torts, §303 (1965).  A texter who has reason to know that a driver will read his or her text and by texting causes an accident is negligent by definition.

Circumstances may make employers liable for employees who text and drive.  In fact, some employers are highly likely to know or have reason to know when their employees are behind the wheel.  Certainly businesses use text messages to direct their employees.  More interesting to businesses is the vast array of other, similar circumstances that might create liability.  “Push to talk” is exempted from an FMCSA ban on cellular phones, but could easily cause an accident or otherwise distract a driver.  Many businesses require their drivers to travel using GPS, which also finds itself in the crosshairs.  The rise of “smartwatches,” Google glass and similar “virtualwear,” touch-screen vehicle radio and comfort controls, heads-up displays and other, as-yet unforeseen technologies raise a slew of liability questions.

The opinion in Kubert v. Best wasn’t a stretch.  Inventive lawyers will stretch in the future, though.  What policies do you have in place to protect your company?

By Dov Szego

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