No one disputes that texting and driving do not mix, but many still do exactly that.  They tend to justify their actions as they would a failure to floss after every meal, shrugging their shoulders and saying it is the wrong thing to do, but it is just too difficult to do the right thing.  Others seek to excuse their actions, considering themselves “Masters of the Universe”, so important and so necessary in their minds to their companies and families that they are entitled to a special dispensation exempting them from the laws of society.  The consequences of their “uniqueness” can be found in serious accidents, in the wreckage of cars, and in fatalities, giving new meaning to the famous comment by Charles de Gaulle that “the graveyards are filled with indispensable men”.

While courts and state legislatures are traditionally slow to respond to changes in technology, many states now have laws in place prohibiting texting while driving.  Legislating such rules is one thing, but enforcing them is another, since texting takes place in the privacy of a car, usually away from the eyes of police officers.  It is therefore generally left to civil suits, brought after a collision has already occurred, to determine whether the driver was texting at the time of the accident. This is surely not the most efficient or effective way to enforce the prohibition on texting behind the wheel.

A new decision from the New Jersey Appellate Court takes the issue one step further.  In an unprecedented New Jersey ruling last August, two members of the court’s three-judge panel found that, in the proper circumstances, liability might attach to the sender of a text who knows or should know that the recipient is driving at the time. (Kubert v. Best, 2013 N.J. Super. LEXIS 132, 2013 W.L. 4512313 (N.J. Super. App. Div. August 27, 2013).)

The Kubert case concerns an incident in which 18-year-old Kyle Best read a text message from his 17-year-old friend Shannon Colonna while Best was driving his pickup truck. (Colonna was not in the vehicle.) Tragically, Best crossed the center line of the road and struck a motorcyclist and his passenger, causing severe personal injuries, including amputations.  The case against Best was settled, but the suit against Colonna, the texter, was not. The Kubert court granted the texter’s motion for summary judgment, finding an insufficient basis to conclude that Colonna knew that Best would read her texts while driving. But, two of the three members of court held, if Colonna had known Best would read her text while drivnig, she could have been at least partially liable for the injuries he caused.

This ground-breaking ruling opens the door to litigation not only against the driver who texts, but also against the person who texts someone they have reason to believe is behind the wheel. The particular fact pattern in Kubert was compelling, as it involved two teenagers happily texting one another numerous times during the day. Indeed, the driver admitted that he had sent or received 180 text messages in the 12-hour period before the accident.  The attorney for the plaintiff undoubtedly summoned the image of careless and carefree teenagers for the jury.  The fact is, however, the law on liability would have been the same if the Countess has been texting the Viscount about the claret that was to be served at the upcoming dinner party for the Palm Beach Society, with the Viscount tooling along in his Mercedes-Benz SL550 Red Roadster.

As a result of Kubert, personal injury plaintiffs will expand the range of potential defendants to include those who text the driver involved, driving up the number of litigants and the number and amount of insurance policies available to settle a case or, in the proper circumstances, be used to satisfy a money judgment.  The cost and scope of litigation will also expand, turning the record of sent and received texts into a key element of discovery.  These additional defendants and third-party defendants, as well as the broader discovery process, will increase motion practice as texter move for summary judgment, trying to avoid the uneasy feeling of having a jury decide if they should share in the responsibility for the accident.

Jury selection in such a case may even turn on the social perceptions of the litigants and the lawyers on the “preferred profile” of a juror.  Attorneys representing the party sending a text to the driver may prefer younger jurors, who — while acknowledging that it is “stupid” to text someone who is driving — may be guilty of the same conduct and therefore more forgiving.  Conversely, those seeking to impose liability on the texter might prefer older, more conservative jurors, especially those who still frown when others talk loudly on cellphones in their presence and who have even been known to honk their horns angrily if they see a driver with a handheld cellphone operating a car.

Cases like Kubert, an appellate decision from a respected jurisdiction, provide vivid and compelling examples of how technology is re-shaping the law in ways few would have anticipated just a short time ago.  In some ways, it may be fitting that the ground-breaking case regarding liability for those who text drivers comes from New Jersey, where the evidence from text is at the central of the “Bridgegate” scandal involving its governor.  How the “originalists,” such as Judges Antonin Scalia and Clarence Thomas, will view the intersection (sorry for the pun) of tort law and texting remains to be seen.  For the present, both the plaintiff and defense attorneys who practice personal injury law will comb through the text records of drivers involved in accidents to determine whether they were sending or receiving texts at the time of the incident, and if so with whom, in order to add additional parties to the litigation. 

–Robert D. Lang

Mr. Lang is a member of the law firm D’Amato & Lynch, LLP in New York City, where he is Chairman of the Casualty Defense Department.

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