New Jersey Appellate Court leaves door open for sender of text messages to be held liable for injuries arising from a defendant driver who is the recipient of distracting text messages.

A New Jersey Appellate Court has held that the sender of a text message may be held liable in New Jersey for injuries arising from a distracted driver, the text message recipient, if the plaintiff can prove that the sender of the test message knew or had reason to know that the recipient would view the message while driving and would be distracted by the receipt of such messages. This is the first such decision in the United States. In Kubert, a vehicle driven by 18-year-old Kyle Best collided with a motorcycle carrying husband and wife, David and Linda Kubert. The Kuberts both suffered serious injuries, including leg amputations. Best later acknowledged that he had been receiving texts from his girlfriend, Shannon Colonna, shortly before he crossed the center line and triggered the collision. Although the Kuberts settled their claim against Best, they continued to pursue a lawsuit against Colonna, arguing that she aided and abetted Best’s unlawful texting. The plaintiffs further maintained that, even though Colonna was at a remote location from the site of the accident, she was “electronically present” in the vehicle shortly before the crash. The trial court did not accept this argument. However, the Appellate Court declined to hold that there are no situations in which the sender of a text can be held liable, stating that: “The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.” Although there was not enough evidence in this case that Colonna “actively encouraged” Best to respond to her text from behind the wheel, the court left open the possibility that there could be a basis for liability against the sender of the text. Notably, this opinion appears to stretch Justice Cardozo’s concept of foreseeability established in the seminal decision in Palsgraf v. Long Island Railroad Co., which held that “[t]he risk reasonably perceived defines the duty to be obeyed and risks imports relation; it is to another or others within the range of apprehension.”

Case Law Alert, 4th Quarter 2013