A recent decision by the New Jersey Appellate Division deals with the issue of texting while driving
Previously, I wrote on the issue of driving while distracted in light of the bus driver who is being charged with homicide by auto as a result of his killing an 8-month old baby while texting on his cell phone while negotiating the streets of North Bergen, a very heavily congested area in Hudson County. The Appellate Division has recently decided a civil case in which the issue of texting while driving also came up. In Kubert v. Best, A-1128-12T4, the Appellate Division decided a case where the two plaintiffs were injured by the driver of a pick up truck, Kyle Best who was apparently texting his girlfriend, Shannon Colonna, immediately before he collided with the Kuberts, who were on a motorcycle. Both plaintiffs had their left leg amputated. The Kuberts settled with Best but proceeded with a claim against Colonna, who they claim was jointly responsible for the accident as she was intimated to have known that she was texting Best while he was driving. The trial court held that, even though proofs showed that Best was texting immediately before the accident, there was not enough evidence to show that Colonna was aware that her boyfriend was driving at the time.
The Appellate Division discussed two statutes, N.J.S.A. 39:4-97.3 that prohibits use of a hand-held device while driving except under certain emergency conditions, and N.J.S.A. 2C:12-1(c)(1), a criminal offense making it a fourth degree offense when one has an accident causing serious bodily harm to another while engaged in the use of a hand-held phone or other electronic device. The criminal statute did not come into play in this case.
To the Appellate Division, the issue that had to be decided was whether the “remote texter” had a responsibility to know whether the texts were going to a person while driving. While the Appellate Division upheld the trial court’s conclusion that there was not sufficient proof to show that the texter in question, Ms. Colonna, knew that Mr. Best was driving, they could not conclude that the remote texter would bear no responsibility had there been a showing of such proof (the Court discussed the fact that there was evidence as to the time that texts were being exchanged but no evidence as to the content of the transmissions).
Thus in this case, the Appellate Division, unlike the trial court, concluded that a person who texts a driver will bear responsibility if it is shown that the texter knew the other person is driving a car, bus or other motor vehicle. The Court analyzed whether the texter, Colonna, had a duty of care towards the plaintiffs. After finding cases where a person may have a duty of care, for instance a passenger who encourages a driver to drive while intoxicated, there was no finding in this case to show that Colonna knew that Best was driving, or encouraged him to do so. The Court also looked at the issue of foreseeability. A sender of a text is not necessarily demanding that the recipient immediately respond. A person can receive many text messages while driving and simply wait until such time as it is safe to answer.
While in this case, the Court did not find liability against the remote texter, it is not inconceivable that, with different facts, the Court could have found otherwise, for instance if the actual text messages were read and it became conclusive that the sender did know the status of the driver. This is probably why there has been a recent legislative effort to permit police to inspect cell phones immediately after an accident, although this bill has been under attack from civil liberties groups like the ACLU on the basis that this would permit unwarranted search and seizure without probable cause.
Anthony Van Zwaren, Esq.
Anthony J. Van Zwaren, Esq., P.A.
The recent Appellate Division decision Kubert v. Best discusses liability of a texter who is being sued for texting a driver, who subsequently causes an accident where serious injuries are incurred by others. The decision discusses the issue of "duty of care" and "reasonable foreseeability" as to whether the "remote texter" was aware that she was texting her friend while driving, whether she had a legal duty towards the motorcyclists who were injured beca