Kubert v. Best; You Now Have A Duty Not To Text Message

Sean Callan, Manley Burke, sean.callan@manleyburke.com

The New Jersey court of appeals just handed down a decision that significantly expands the concepts of foreseeability and duty of care. The case involved high school students and, as such, does not directly implicate Greek letter organizations. However, the decision clearly affects our members and should be duly noted, particularly by our members in the State of New Jersey.¹

In essence, the New Jersey court of appeals estab­lished a new duty of care when sending a text message. If you send a text message to someone you know to be driving, and you are aware that the recipient will read the message while driving, then you, as the remote sender, have breached your duty of care to other motorists. Accordingly, you can be held liable for damages resulting from an accident arising from the negligence of the recipient in reading your text message while driving.

On September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passen­ger. As they rode around a curve, a pick-up truck driven by eighteen-year-old Kyle Best crossed the double center line, striking the Kuberts and their motorcycle. Mr. Best called 911 seeking emergency assistance at 5:49:15 pm. As a trained volunteer firefighter, Mr. Best provided emergency assistance until paramedics arrived. Notwithstanding those efforts, each of the Kuberts both lost their left leg in the accident.

The Kuberts filed an action against several parties including Mr. Best. During discovery, it became clear that Mr. Best was texting while he was driving that day, a viola­tion of New Jersey law. He was texting with a social friend, Shannon Colonna. In fact, through phone records, the Ku­berts were able to demonstrate that Colonna and Best had an ongoing text messaging conversation for several minutes prior to the accident. They were also able to prove that Colonna sent a text to Best 1 minute prior to the accident, a text to which Best responded 17 seconds prior to his 911 call. As a result of these records, the Kuberts were able to prove that Best sent this text immediately prior to the accident. Best settled out of court.

However, after learning of the text messages, the Kuberts also filed suit against Colonna. The theory of liability against Colonna was that she had distracted Best by virtue of her text messaging. Because there is a duty to refrain from distracting drivers while driving, the Kuberts argued that Col­onna was also responsible for their injuries. Moreover, the Kuberts argued that by sending these text messages, Colonna was electronically present in the car, thus aiding and abetting Mr. Best’s violation of the anti-texting law.

Ms. Colonna likely did not help herself in her deposi­tion. In her deposition, Colonna acknowledged that it was her habit also to text more than 100 times per day. She said: “I’m a young teenager. That’s what we do.” She also testified that she generally did not pay attention to whether the recipient of her texts was driving a car at the time or not. She thought it was “weird” that plaintiffs’ attorney was trying to pin her down as to whether she knew that Best was driving when she texted him.

Notwithstanding this testimony, the trial court grant­ed summary judgment in favor of Colonna. On appeal, the court of appeals affirmed summary judgment based on the facts adduced in the record. Notably, the court found that Colonna did have a limited duty to the general public, and that if more facts were developed below, Colonna likely would have legal responsibility for the Kuberts’ injuries. Specifical­ly, the court wrote as follows:

Our conclusion that a limited duty should be imposed on the sender is supported by the “full duty analysis” described by the Supreme Court .. .

When the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways simi­lar to that of a passenger physically present in the vehicle. As we have stated, a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same.

When the sender texts a person who is then driving, knowing that the driver will immediately view the text, the sender has disregarded the attendant and foreseeable risk of harm to the public.

So, if the Kuberts had demonstrated that (i) Colonna knew that Best was driving when she sent the text, and (ii) that Best would immediately view the text, then she would have violated her duty to the general public to refrain from distracting a driver. In this case, however, the Kuberts had not developed facts sufficient to demonstrate the Colonna knew Best was driving. Accordingly, summary judgment was ap­propriate here.

We will monitor the progress of the case, particularly whether the New Jersey Supreme Court accepts further ap­peal, and update as events warrant. For now, we should ad­vise our members, particularly those in New Jersey, of their new duty to refrain from texting drivers.

1. http://www.judiciary.state.nj.us/opinions/al 128-12.pdf