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“Remote” texting someone while they’re driving? You could be liable!

August 29, 2013 by Steven M. Gursten

Auto accident attorney discusses groundbreaking New Jersey ruling that ‘remote texters’ can be held liable for crashes caused by texting

remote texting

“Remote texters” beware!

You could be held liable if the person you’re texting gets in a car crash and injures or kills someone else.

This is the result of the New Jersey appellate court’s groundbreaking August 27, 2013, ruling in Kubert v. Best and Colonna that a “remote texter,” i.e., “one who is texting from a location remote from the driver of a motor vehicle,” can be held liable for crashes caused by their 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.” (Page 4)

The Kubert panel explained:

“We conclude 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.” (Page 11)

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“[W]e 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. We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.” (Page 29)

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Although the ruling came in a New Jersey case, there could be implications for Michigan drivers and drivers in other states where, like Michigan, texting-while-driving is illegal. For more information about Michigan’s texting ban, take a look at our blog post on the penalties for texting and driving in Michigan.

Michigan’s ban on texting-while-driving provides:

“[A] person shall not read, manually type, or send a text message on a wireless 2-way communication device that is located in the person’s hand or in the person’s lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle [or commercial motor vehicle or a school bus] that is moving on a highway or street in this state.” (MCL 257.602b(1) and (2))

Texting causes horrific crash

On September 21, 2009, 18-year-old Kyle Best drove his pickup truck over the double center line on Hurd Street in Mine Hill Township in New Jersey and slammed into the motorcycle being lawfully operated by David and Linda Kubert.

Immediately prior to the crash, even though texting-while-driving is illegal in New Jersey, Best had been texting back and forth with his 17-year-old friend, Shannon Colonna.

As a result of the crash, both of the Kuberts had to have their left legs amputated.
The Kuberts sued and settled with Best, but their lawsuit against Colonna was dismissed by the trial court.

‘Remote texter’ liability

Ultimately, the New Jersey appellate court upheld the dismissal on grounds that there was insufficient evidence to establish that Colonna knew or had a special reason to know that Best would view the text while driving.

But the Kubert court nevertheless broke very significant legal ground by recognizing for the first time the concept of “remote texter” liability:

“[W]e … conclude that 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. We conclude that additional proofs are necessary to establish the sender’s liability, namely, 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.” (Page 22)

Lessons for future ‘remote texter’ cases: Content of the text messages

Phone records are essential to establishing liability both against a texting-while-driving driver and a “remote texter.” They establish the timing and sequence of texts leading up to, immediately before, during and after the texting-related crash.

But, as the Kubert opinion makes critically clear, the content of the actual text messages may even be more essential, especially when trying to determine and prove that the “remote texter” “knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”

In concluding that the evidence was insufficient to show that Colonna knew or had  special reason to know that Best would view her text, the Kubert made the following telling observation:

“Missing from the evidence is the content of the text messages. Plaintiffs were not able to obtain the messages Best and Colonna actually exchanged, and Best and Colonna did not provide that information in their depositions.” (Page 9)

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“Nor is there evidence that she actively encouraged him to text her while he was driving. Colonna sent two texts to Best in the afternoon of September 21, 2009, one about two hours and the second about twenty-five seconds before the accident. What she said in those texts is unknown.” (Page 18)

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“[T]hey failed to develop evidence tending to prove that Colonna not only knew that Best was driving when she texted him at 5:48:14 p.m. but that she knew he would violate the law and immediately view and respond to her text. As our recitation of the facts shows, Colonna sent only one text while Best was driving. The contents of that text are unknown.” (Page 29-30)

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Related information:

New report: One quarter of all crashes involve cell phones

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