The New Jersey Judiciary has been busy lately with cases about cellphones. First there was the Supreme Court of New Jersey ruling in State v. Earls, No. A-53-11 (N.J. Sup. Ct. 2013), which held that an individual has a right to privacy regarding cell-phone location information. More recently, in Kuber v. Best, No. A-1128-12T4 (N.J. Super App. Div. 2013) (Not Approved for Publication without the Approval of the Appellate Division), the Superior Court of New Jersey Appellate Division decided whether “as a matter of civil common law 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.” (Id. 4). In other words, can a person be liable for texting a driver and then the driver has a traffic accident.
Facts of the Case
As per the Appellate Division, Linda and David Kubert were driving, when an eighteen-year-old driver, Kyle Best, drove across the center-line of the road and crashed into the Kuberts. (Id. 2). Best’s friend, Shannon Colonna, was texting Best when the accident occurred. (Id.) While the Kuberts had settled their case with the Best, they also decided to sue Colonna, for texting a driver who then had an accident. (Id.).
The New Jersey Legislature passed a law that makes it illegal to use a non-hands-free cellphone while driving. N.J.S.A 39:4-97.3. states:
The use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free, provided that its placement does not interfere with the operation of federally required safety equipment and the operator exercises a high degree of caution in the operation of the motor vehicle.
NJSA 39:4-97.3 Use of wireless telephone, electronic communication device in moving vehicles; definitions; enforcement (New Jersey Statutes (2013 Edition)).
The court also acknowledged that the New Jersey State Legislature enacted the “‘Kulesh, Kubert, and Bolis Law,’ to provide criminal penalties for those who are distracted by use of a cell phone while driving and injure others.” (Id. 3) The court stated that “[t]he issue before [it] is not directly addressed by these statutes or any case law that has been brought to [the court’s] attention.” (Id. 4).
In Kuber we were introduced to a situation in which a texting driver caused an accident, and while the victims settled with the driver, the person who was texting the driver was also found liable to the victims.
The Court’s Holding
In ruling for the Kuberts, the court found 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.” (Id.). The Appellate Division did not uphold the Superior Court’s finding that the person texting a driver has no legal duty if their text causes a driver to have an accident. (Id. 4 – 5). Under certain circumstances, discussed below, a person can be found liable to a third party for texting a driver.
The court examined when a Defendant owes a legal duty to a Plaintiff. In New Jersey, there are four factors that must be proved by the Plaintiff are:
1) That the defendant owed a duty of care to the plaintiff,
2) That the defendant breached that duty,
3) That the breach was the proximate cause of the plaintiff’s injuries, and
4) That the plaintiff caused actual compensable injuries as a result.
(Id. 12, citing Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)).
The Appellate Division looked at when a duty exists between a defendant and a plaintiff. The Appellate Division cited a recent Supreme Court of New Jersey case, Estate of Desir ex. rel. Estiverne v. Vertus, ___ N.J. ____ (2013) which stated that a duty of care turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing of several factors – the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. (Kubert, A-1128-12T4 at 14, citing Estate of Desir ex. rel. Estiverne). In reviewing the standard the court found that a person has a duty to the victims when texting a driver and that driver causes an accident.
In light of the factors, the court ruled that Colonna did not have special relationship with Best, nor could she have controlled his conduct. (Id. 18). There was also no evidence in the record that Colonna insisted that Best text with her while he was driving. (Id.).
The court also refused to hold a texter liable “simply because some recipient might use his cell phone unlawfully and become distracted while driving. (Id. 21). Furthermore, “liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving.” (Id. 22). The court found that a plaintiff must submit additional proof showing that “the sender also 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.” (Id. 22).
What Does This Mean for Texters in New Jersey?
So what does this mean for texters? While the court now recognizes a liability of a texter is they text a driver while driving and they know the driver is driving, Judge Espinosa in her concurrence notes that “the bar set by the majority for the imposition of liability is high and will rarely be met.” (Id. 31). In this case, all the Plaintiff’s could show was that Best and Colonna were texting each other. There was nothing on the record that shows that Colonna knew Best was driving just before she texted him.
If the Plaintiff’s disagree with the court’s ruling as to Colonna’s liability they could appeal this decision to the Supreme Court of New Jersey. If the Plaintiff’s decide to do this, the Supreme Court of New Jersey might address the new standard the Appellate Division created, but for now you could be liable for texting a driver who causes an accident.