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New Jersey Court Opens Door to Liability for "Remote Texters" In Auto Accident, Maryland Not Expected to Follow

Cellphone in hand.jpgMaryland lawmakers continue to grapple with where to draw lines on texting while driving. In 2011, Free State politicians refined the "texting while driving laws" by putting into effect legislation imposing a $500 fine for glancing at a text message or an e-mail while at the wheel of a car. Previously, Maryland drivers were barred from writing text messages while negotiating traffic but allowed to read them.

In a recent ruling, a New Jersey appellate court has ramped up the "texting while driving" debate by deciding that texting while driving with knowledge or reason to believe the recipient would view the text while driving can be the basis for liability if an auto accident occurs.

"The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction," the appeals court said in Kubert v. Best, while holding one of the teenage texters in the case harmless.

Basically, the New Jersey court has created a new cause of action, agreeing with the plaintiff's attorney that the texter was "electronically present" during the 2009 auto accident that gave rise to the court's decision.

David Kubert was riding his motorcycle with his wife, Linda, as a passenger, during the afternoon of September 2009. A pick-up truck, driven by then 18-year-old Kyle Best, crossed the double line and hit the couple severing David's left leg and shattering Linda's left leg, leaving her fractured thighbone protruding out of the skin as she lay on the road. Best, a volunteer fireman, aided the couple until help arrived. The Kuberts each lost a leg as a result of the accident.

After the Kuberts filed a lawsuit, their attorney developed evidence on Best's activities during the day of the accident. The attorney discovered that Best and then 17-year-old Shannon Colonna had texted each other 62 times on the day of the accident, about an equal number of texts originating from each. The telephone record also showed that, in a period of less than 12 hours that day, Best had sent or received 180 text messages.

During a deposition, Colonna acknowledged sending more than 100 texts per day, explaining: I'm a young teenager. That's what we do. She also testified that she did not pay attention to whether the recipient of her texts was driving a car or not.

Colonna was added to the lawsuit. Her attorney asked that she be dismissed from the case, arguing that Colonna had no liability for the accident because she was not present at the scene, had no legal duty to avoid sending a text to Best when he was driving and that she did not know that he was driving. The trial judge concluded that Colonna did not have a legal duty to avoid sending a text message to Best, even if she knew he was driving. The trial judge cited a Fourth Circuit case that involved a driver distracted by text messages - Durkee v. Geologic Solutions, Inc. - in which the plaintiffs, injured when a tractor-trailer rear-ended their car, sued the manufacturer of a text messaging device that was installed in the tractor-trailer. The plaintiffs said the device was defective because it could only be viewed while the trucker was driving and that it had distracted the driver immediately before the accident that injured them. The federal court dismissed the claims against the manufacturer of the device, holding that it was the driver's duty to avoid distraction.

Relying on Durkee and several other cases, the judge dismissed the claims against Colonna. The court said there was no evidence that the teen texter had any reason to believe that Best would read the text while driving. "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," the trial court said.

But, describing it as the first time the issue had been considered in a New Jersey court of law, a majority panel of the appellate court disagreed with the trial court, opening up the door to liability for a remote texter who knows that the recipient is driving. "We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving."

New Jersey prohibits texting while driving - a higher standard than the one currently used in Maryland. The Kubert's argued that Colonna could be found liable because she aided and abetted Best's unlawful texting while he was driving. New Jersey courts have also recognized that a passenger who distracts a driver can be held liable for causing an accident.

The court said the issue in the case was whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text. "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 special reason to know that the recipient would view the text while driving and thus be distracted," the court said.

The New Jersey appeals court said that, while the driver has the ultimate responsibility for avoiding distractions while behind the wheel, remote texters also have a relationship with the motoring public.

However, the appellate court also ruled that there wasn't enough evidence to defeat summary judgment in favor of Colonna.

The Maryland courts, which just recently declined to find bars liable for the actions of drunken patrons in a lawsuit involving a Maryland man whose auto accident led to the death of a young girl and serious injuries for the rest of the family, aren't expected to issue a similar ruling.

Baltimore, Md.-based Belsky, Weinberg & Horowitz has been representing the victims of auto accident, personal injury and negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.

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