Sending a Text to a Driver: R U Liable?

You send a text message to your buddy who is on a cross-country road trip, or to your spouse who is in the middle of a daily freeway commute. While busy reading your message, your buddy hits a pedestrian, or your spouse rear-ends another vehicle. Next thing you know, you’re slapped with a personal injury lawsuit. Sound crazy? Maybe not, if a recent New Jersey court decision has anything to say about it.

Here’s what the New Jersey Superior Court, Appellate Division held in their opinion in Linda Kubert, et al. vs. Kyle Best, et al., (which was filed on August 27):

    “The sender of a text message has a duty under the common law of negligence to refrain from sending a text to a person who the sender knows, or has special reason to know, is then driving and is likely to read the text while driving.”

The court didn’t extend liability to the specific case before it, finding insufficient evidence that the sender of the text breached any such duty under the circumstances. But they made clear that the potential for this kind of liability exists in New Jersey.

Let’s break this down a little bit: When it comes to civil tort liability — which means being on the legal hook for any harm or damages caused by something you did or didn’t do — the first thing the injured person must show is that you owed them some kind of legal duty of care. If you have no such duty, you’re not liable for any resulting injuries. It’s that simple.

So, what the New Jersey appellate court is doing here is opening the door for tort liability to extend to the sender of a text message, saying that if they know or have “special reason” to know that they’re sending a text to someone who is driving, they owe a legal duty — an obligation to anyone who may be injured by the driver’s inattention in the seconds spent reading the message — not to hit “Send.”

Is this a bit of a legal stretch? Aren’t drivers solely responsible for what they do and don’t do behind the wheel? Is “Bloombergian” a word? These are all good questions. Every state has laws prohibiting “distracted driving” in general, and most states have passed laws that specifically forbid using a handheld device to send and read text messages while driving.  If a driver is found to have violated these traffic laws in connection with a car accident, that’s a pretty clear-cut case of liability for any harm caused to other drivers, passengers, pedestrians, and so on. And the driver’s legal duty extends to keeping their hands off a phone while driving, regardless of who may or may not be texting, and devoting their total attention to what’s happening on the road.

Some might say that’s as far as the law should go, and they might wonder where it all ends. What about texting a surgeon while they are on call? Or a professional pilot? How about your rodeo clown buddy who stops to read your knock-knock joke while the cowboy gets a longhorn in his backside? That all may seem farfetched, but before you text your driving pals in the Garden State, know that you may be heading down a costly road.