Don’t Text and Drive Now Includes: Don’t Text Drivers

New Jersey texters beware: you could be liable for an automobile accident even if you weren’t at the accident. According to a New Jersey Superior Court, people who send text messages on their phones have a legal duty not to distract a driver.

On September 21, 2009, Kyle Best left work at the YMCA. At 5:43pm, the eighteen year old began texting his friend, Shannon Colonna. Best sent three text messages. At 5:47pm, Colonna sent a text back. While Best was reading Colonna’s text reply, Best crossed the center line of a curve. Best hit a motorcycle and its two occupants, David and Linda Kubert. Although the couple survived, both the victims had to have their left legs amputated.

The story is tragic, but it could have been a normal personal injury case had it ended here. However, Colonna was called down to the courthouse. The seventeen year old assumed she was merely a witness, although the attorney’s question as to whether she knew Best was driving when she texted the plaintiff struck her as “weird.”

Colonna’s presence at the trial, however, was as a defendant. The Kurberts’ attorney alleged that she had a duty to the victims, her text messages had been the cause of the accident and that she should also be liable. Best eventually settled his dispute, but the claim against Colonna was appealed when the trial court dismissed the case.

Surprisingly, the appeals court agreed with Kurberts’ attorney about Colonna’s legal duty to the Kurberts. In a 2-1 decision, the appeals court ruled that a “person sending a text message has a duty not to text someone who is driving if the texter knows or has special reason to know that the recipient will view the text while driving.” The judges reached their conclusion by holding that “the sender has a relationship to the public who use roadways similar to that of a passenger physically present in the vehicle.” In the mind of the appeals court, texters were comparatively the same as passengers.

Fortunately for Colonna (and her parents), the appeals court also agreed with the trial court that there was not enough evidence to find Colonna liable, even under the new legal duty the appeals court had created.

The new duty may have serious repercussions for texters, but the duty is quite narrow. A texter may only face the possibility of tort liability if he knew or should have know that the person he was texting would read the text while driving.

On the other hand, this is an example of “judicial activism” that could open the door to all kinds of crazy and unexpected results. The relevant New Jersey statute, like similar statutes found in most other states, only prohibits drivers from sending text messages. The court is arguably overreaching by extending the law in a manner outside the scope of the law. The problem with judge-made law is that it does not have many limits on how far it may be extended. If people sending text messages can be liable if they distract a driver, people calling those same drivers should also be liable. If texters are like physical passengers, then physical passengers should also be liable for any injuries the drivers cause.

Putting a legal duty on people who send text messages might be a good idea. This is a novel concept that has yet to be tested. However, this is not a decision that judges should make on behalf of the people. If New Jersey really needs a law restricting text messages, then let it come from lawmakers who may better represent the opinions of the people.