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  • N.J. Court Rules: Texters Can Be Found Liable for Texting and Driving from Their Living Room—The Implications for E-discovery

    Locals were stunned when a New Jersey Appeals Court held “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.”

    On August 27, 2013 that was the ruling in the case, Kubert v. Best, an appeal stemming from an accident in 2009 when a man crashed his pickup truck into a couple on a motorcycle while reading a text from a 17 year old girl. The result of the crash left the Morrison town couple, David and Linda Kubert, suffering severe injuries including the loss of each of their left legs. In response to the accident, the couple not only sued the driver of the pick-up truck, but also sued the 17 year old girl who texted him at the time of the accident.

    After settling the injuries with the pick-up truck driver, the Kuberts appealed after the trial court held that a remote texter cannot be found liable for distracting a driver through a cell phone message.

    Contrary to the trial court’s opinion, the Appeals Court held that remote texters can be found liable for sending messages to a person while the recipient is driving. However, the Court did not find  the 17 year old girl in this case liable because there was insufficient evidence to conclude that the girl took “affirmative steps and gave substantial assistance” in helping the driver violate the law. Specifically, there was no evidence showing that the 17 year old girl “urged” the driver to read her messages while he was driving.

    In response to the Kuberts’ experience, the New Jersey State Legislature enacted into law the “Kulesh, Kubert and Boils Law.” The law will allow for a jury to infer that a person who is found guilty of causing an accident as a result of using a hand-held phone while driving can be found guilty of assault by automobile, a fourth degree crime. Thus, a driver distracted by his cell phone and who causes injury to another, could potentially face jail time if the victim suffers severe injuries.

    The Court hopes its decision will spark a “sustained campaign” warning to the public about the dangers of distracted cell phone driving. In an effort to achieve this warning, the Court stated that there are two facts that must be proven in order to hold a remote texter liable: (1) that the remote texter “knew” that the text was being sent while the recipient was driving; and (2) that the texter “knew” the driver would “immediately” read or respond to the text while driving.

    The Court explained that the mere sending of a text message is not enough to implicate a remote texter’s guilt. “Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.”  Rather, the Court emphasized that it will consider the remote sender’s knowledge when determining liability.

    Notably, the Court opinion does mention other types of social media outlets that could potentially send distracting communications to drivers, but does not really expound upon the liability that could be derived from messages sent and received from these alternative electronic communication outlets. Nonetheless, this would implicitly suggest that it might be possible for a cause of action to be brought against a remote sender, via a Twitter post or a Facebook post as long as the sender knew at the time of posting the message that the recipient was driving and would be immediately distracted as a result of receiving the message.

    Whether this case will open the doors to a whole new realm of auto liability remains to be seen. Either way, it is apparent that the ruling in this case will have grave implications on how and when people communicate electronically and the depth to which e-discovery will play even a greater role in automobile accident cases.

    If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at 516-357-3753.

    A special thanks to Melissa Cefalu, a law clerk at Cullen and Dykman LLP, for help with this post.