Can You be Liable for Texting a Driver Right Before the Driver is Involved in an Accident?

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by: Brittany Kriebel, Staff Writer

According to the New Jersey Court of Appeals, the answer could be yes.  In New Jersey, texting while driving is prohibited and it is illegal to use a cell phone that is not “hands free.” Even though texting and driving is illegal, a recent case in August 2013 caused judges of the New Jersey Court of Appeals to define third party liability in texting while driving scenarios.

The case in question is Kubert v. Best, 2013 WL 4512313 (N.J. Super. App. Div. 2013). In Kubert, a driver received a text from a girl friend, and, about twenty five seconds later, he veered into the opposite lane severely injuring a motorcyclist and his wife.  The couple brought an action against the driver and his friend who had sent the text right before the accident.  The couple eventually settled against the driver, but kept their claim against the friend.  This was a case of first impression, in that a third party “texter” has never been liable for an accident caused by a driver.  The defendant’s attorney argued that the friend was not present at the scene of the accident, had no legal duty to not text the driver while he was behind the wheel, and was unaware that he was driving.  The trial court accepted these arguments and ruled in favor of the defendant.  On appeal, the plaintiffs argued that the defendant is liable if the jury finds the text message she sent was the proximate cause of the accident.

The New Jersey Court of Appeals clarified that an individual who texts a driver is not liable for the driver’s negligent actions.  It is the driver’s responsibility to obey the law while safely maintaining control of the vehicle.  However, the Court did hold that when a “texter” knows, or has reason to know, that the recipient is driving or knows that the person is likely to read the message while driving, the “texter” has a duty to motor vehicle users to refrain from sending text messages to the driver at that time.  The Court of Appeals affirmed the trial court in finding that the plaintiffs failed to establish evidence that the defendant knew the driver was driving, or that the driver would immediately view and respond to her text.  

This is not the first texting and driving law New Jersey has proposed. In June, lawmakers introduced a bill that would require drivers involved in an accident to surrender their phones to police officers without a warrant. Handing over the phone would allow police officers to review the timing of the text messages and calls, which would establish whether the phone was being used during the accident. This bill is still in committee, and many are concerned that if legislators pass one law allowing the government to infringe on the right to privacy, there will be no limit on taking away civilian rights and privileges.

It is unclear at this point whether Pennsylvania courts will adopt the laws passed and proposed in New Jersey. At times Pennsylvania courts do look to New Jersey courts when updating laws. Advice to those texting friends who are driving: don’t; you could be found liable one day if the person you are texting gets in an accident.

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