The Second Opinion: Sender of a Text Message Can Be Liable for Distracting a Driver
The dangers of texting while driving are well known, with distracted drivers properly found criminally and civilly responsible for the injuries they cause. In an interesting twist, the New Jersey Court of Appeal recently held that the person sending the text to a driver may also be held liable.
Teenager Kyle Best and his friend Shannon Colonna were in the habit of texting each other frequently. One afternoon, immediately after punching out of his part time job at 5:41 pm, Best texted Colonna. He then got into his pickup truck and at 5:49, records show he made a 911 call to report that he hit and grievously injured two people on a motorcycle. Those same records also show that in the eight minutes between leaving work and the 911 call, Best and Colonna exchanged three texts while Best was driving.
The injured parties sued Best (this claim settled) and sued Colonna as well, claiming that she had a duty to avoid sending text messages to someone who is driving. They advanced two arguments: first, that Colonna had was contributorily negligent in that she “aided and abetted” Best’s unlawful texting while driving and second, that Colonna had an independent duty to avoid texting a person whom she knew was driving.
The trial court dismissed the claim on a summary judgment motion, saying no such duty existed. On appeal, the New Jersey Court of Appeal held, in Kuber v. Best, No. A-1128-12T4 (N.J. Super App. Div. 2013) that a duty to avoid sending text messages to a driver does exist. However, in the circumstances of this case, the appellate court held that the plaintiff had not established the duty arose, and dismissed the claim on that basis.
The appellate court qualified the duty on a texter, saying:
We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had a special reason to know that the recipient would view the text while driving and thus be distracted.
The “special reason” requirement would be satisfied by showing that either a special relationship existed between the sender and the recipient (e.g. employer-employee, parent-child, etc) or that the sender had actively encouraged the driver to commit the negligent act.
In attempting to attach joint liability, the plaintiff alleged that Best and Colonna, as sender and recipient, were acting in concert. The test in the Restatement (Second) of Torts, subsection 876 however, requires there be a special relationship between the two, and active encouragement to participate in the negligent act. The court held that there was no special relationship between the two, and that the mere sending of a wireless communication, without more, could not be considered active encouragement.
With respect to an independent duty, the court held that such a duty does exist and attaches to the sender of a text because he or she “has disregarded the attendant and foreseeable risk of harm to the public” that will occasioned by distracting the driver.
This case sounds a cautionary note for employers, and for manufacturers of communications technology.
Employers, especially those which use wireless communication for their field employees (e.g. dispatch, work order management, etc.), may want to ensure their policies around such communication clearly state that they are not to be used while driving. A robust policy in this regard may assist in establishing that the employer had a reasonable expectation that an employee would not review any communications received while driving. Certain employers, particularly those using communications technologies that are integrated into vehicles, may want to consider installing technologies that disable such communication while the vehicle is in motion.
Similarly, auto manufacturers that have embedded communication technologies may wish to include strong warnings about the use of such technologies while driving or even consider making available the option of a kill switch that disables the technologies while the vehicle is in motion.
New Jersey Restatement technology tort