“Landmark Court Decision Punishes Texting While Driving”

September 11, 2013

“Landmark Court Decision Punishes Texting While Driving”

While texting and driving in Florida is now illegal, enforcement is problematic. However, civil lawsuits are making real progress at punishing reckless texters.

In a recent landmark decision, the Superior Court of New Jersey – Appellate Division held, “[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.” Kubert v. Best, 2013 WL 4512313, ___ A.3d ___ (N.J. Super. Ct. App. Div. 2013). A copy of the decision is available here. The court analogized the texting danger to the following hypothetical example:

A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C. [Restatement § 876, comment d, illustration 4.] The example illustrates that one does not actually have to be the person who threw a rock to be liable for injury caused by the rock.

The Court found that a texter is “electronically present” at the scene of injury. Therefore, the Court found no difference between the texting scenario and a duty which a passenger owes to the driving public to prevent an intoxicating driver from taking the wheel.

What is the responsibility of the text sender? According to the Kubert court; “[T]the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law.” More is required; the sender must take active steps to urge the driver to read and respond to the text while driving.

And just as important, corporations need to have firm policies in place to ensure that those in the office do not force their drivers, or others, to immediately respond to texts while driving.

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Domnick Cunningham & Whalen

Domnick Cunningham & Whalen

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