Consider the case below and answer this question: If California does not impose a comparable duty on remote texters, how should the holding in this case be applied to someone sending a text from California to a person driving a car in New Jersey?

Kubert v. Best

Superior Court of New Jersey, Appellate Division75 A.3d 1214 (N.J. Super. Ct. App. Div. 2013).

Facts

David Kubert was riding his motorcycle with his wife, Linda Kubert, as his passenger when they were hit by a pickup truck driven by 18-year-old Kyle Best. Best was texting while driving, which is illegal under New Jersey law. Both of the Kuberts lost their left legs in the accident. They filed suit and ultimately settled with Best. The suit also named as a defendant Shannon Colonna, a young woman who had sent a text message to Best moments before the accident. The trial court dismissed the suit against Colonna after finding that she had no legal duty to refrain from sending a text message to Best, even if she knew he was driving. The plaintiffs appealed.

Issue Presented

Under New Jersey common law, may an individual who is texting from a location remote from the driver of a car be held liable to persons who were injured because the driver was distracted by the text message?

Summary of Opinion

The New Jersey Superior Court, Appellate Division, explained that a negligence suit involves four elements:

• (1)
• a defendant who owes a duty of care to the plaintiff,
• (2)
• the defendant's breach of that duty,
• (3)
• injuries resulting from the breach (proximate cause), and
• (4)
• damages.

The court noted that more than one defendant can be the proximate cause of injury and thus liable: "Whether a duty exists to prevent harm is not controlled by whether another person also has a duty, even a greater duty, to prevent the same harm." To determine whether a duty of care exists, the New Jersey Supreme Court requires "the full duty analysis," which includes considerations of basic fairness, public policy, the relationship of the parties, the nature of accompanying risks, the ease and ability of exercising care, and the public interest in the proposed solution.

The plaintiffs first argued that the court should impose a duty of care on Colonna because she "aided and abetted" Best's violation of the law. After analyzing various cases and reviewing the Restatement (Second) of Torts, the court concluded that Colonna did not have a "special relationship" with Best such that she could control his conduct. Even if a "reasonable inference" could be drawn that she sent Best messages that required responses, Colonna did not "urge" Best to read and respond to the texts while driving. The act of sending the messages, taken alone, was not "active encouragement" that he read the text and then answer while driving. Accordingly, there was insufficient evidence to hold Colonna liable for aiding and abetting Best's negligent driving. In short, the court explained, "we do not hold that someone who texts to a person driving is liable for that person's negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle."

The plaintiffs then argued that Colonna had an independent duty not to text someone she knew was driving. The court noted there was no case on point, either within or outside New Jersey, and looked at various cases addressing analogous situations. After applying the "full duty analysis," the court held that a sender of a text is not liable unless the sender "knew or had special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle." Liability is not established by showing "only that the sender directed the message to a specified recipient, even if the sender knew the recipient was then driving." If, however, 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." In such a case, because the sender has "knowingly engaged in distracting conduct, ... it is not unfair also to hold the sender responsible for the distraction." Just as a passenger has a duty to the others who use the roadways not to distract the driver, a remote sender of a text who knows or has special reason to know that the recipient will drive and text has a duty to users of the public roads to refrain from sending the driver a text at that time.

Result

Although the court imposed a new, limited duty on the remote sender of a text to a driver, it held that there was insufficient evidence in this case to show that the remote texter had breached that duty. The case against Colonna was dismissed.