New Jersey Court Makes Text Senders Liable for Texting While Driving Accidents

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Sep 28, 2013

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A New Jersey court has taken a progressive step in the fight against texting while driving by stating the person responsible for sending a text that distracts a driver may be liable for injuries in the resulting accident.  The decision came in a personal injury case filed by two individuals who were seriously injured by an 18 year old driver who hit their motorcycle while reading a text.  In addition to seeking damages against the driver, the injured parties pursued the 17 year old friend who sent him the text that caused him to lose concentration and cause the accident.

When Sending a Text Leads to Accident Liability

The New Jersey Court’s decision, found here in Kubert v Best, ultimately declined to find the 17 year old who sent the text responsible for the accident, however, it did establish that under a different set of circumstances the text sender would be responsible.

A text sender may be held liable for a car accident if “the sender knows that the recipient is both driving and will read the text immediately.”  In such a situation, “the sender has taken a forseeable risk in sending a text at that time,” and because he or she “knowingly engaged in distracting conduct, it is not unfair to hold the sender responsible for distraction.”  This means that, in New Jersey, a person responsible for sending a text to a driver who is, as a result of reading the text, in an accident could be liable if he or she knew the recipient was driving and that the text would likely distract them.

The decision to hold text senders liable for car accidents, although unique, is rooted in classic theory of personal injury law.  Car accident law allows courts to place legal responsibility for an accident on any party whose actions could forseeably lead to the crash.  If a passenger is behaving in such a way that he distracts the driver, then he will be at least partially, if not wholly, responsible if his distracting behavior causes an accident because it is forseeable that causing a driver to lose focus could lead to a crash.  When a person creates a potentially dangerous situation by distracting a driver, he will be liable for the damages that result.

In the Kubert case, the New Jersey court simply expanded the theory that a person knowingly causing a distraction should be responsible for the resulting accident to parties who send texts.  Although the distracting party is doing so remotely, they are still causing a distraction by sending a text to someone they know is driving. 

Limitations on the Kubert Decision

The decision in Kubert is certainly a legal landmark that could indicate a trend in how states and courts adopt law and policy to combat the dangers of texting and driving, however, there are limitations to the ruling that need to be addressed.  First, the ruling is limited to New Jersey.  Although the court’s thought process could, and likely will, be duplicated by judges across the country, the decision does not affect other states at this time.

More critically, it is important to note that, while establishing that liability for text senders is possible, the Kubert court declined to actually find the text sender responsible because there was insufficient evidence that she knew the driver was on the road at the time.  This fact is important because there is still not a case that demonstrates what type of evidence is sufficient to find a text sender responsible for the cause of an accident, and, given the evidence, what portion of liability the text sender shares.  In any texting while driving accident, it is ultimately the responsibility of the driver to ignore the text until he is no longer on the road, and it will be interesting to see what type of evidence is sufficient to shift the burden of safe driving to a remote text sender.  It is an interesting, and important, question that the Kubert decision does not answer.

In the wake of the Kubert decision, the state of New Jersey has established a foundation for text sender liability, but has left the issue fairly wide open to interpretation.  Future cases that actually find a text sender responsible for a car accident are required to give the law proper definition, but the critical step that opens the door to text sender liability has been taken.  Despite the work that needs to be done, text senders in New Jersey have been put on notice, and it is likely that courts across the country, in an effort to eliminate texting and driving, will take a similar path in the near future.

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