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By: Abby A. Vineyard
The Superior Court of New Jersey, Appellate Division recently held that, under certain circumstances, a person has a legal duty to avoid sending text messages to the driver of a motor vehicle. Kubert v. Best, No. A-1128-12T4, 2013 WL 4512313, at *1 (N.J. Super. Ct. App. Div., Aug. 27, 2013). On September 21, 2009, teenaged driver Kyle Best was exchanging text messages with fellow teenager Shannon Colonna while Best was driving. Best crossed into the opposite lane of travel and struck David and Linda Kubert. The Kuberts settled their claims against Best but contended that Colonna was responsible because she was “electronically present” in Best’s vehicle. Id. at *1-2, 5.
The Court was swayed by the Kuberts’ argument but put limitations on the liability of a remote text message-sender. It held that a person sending text messages to a driver (from a remote location) can be liable to someone who is injured as a result of the driver’s distraction, but the plaintiff must prove the sender “knew or had special reason to know” the driver would be distracted by looking at the text message while driving. The Court emphasized it is not enough to show the sender knew that the recipient was driving. Rather, the sender must have had “special reason” to know the recipient would read the text message while driving. Id. at *7, 9. The Court did not provide examples of what evidence would be sufficient to prove that a remote sender had special reason to know the driver would read a text message immediately upon receipt.
The Court affirmed summary judgment for Colonna because the Kuberts did not produce sufficient evidence that Colonna knew or had reason to know Best was driving, much less that Best would read her text messages while driving. It based its decision on (1) Colonna’s testimony that she habitually sends more than 100 text messages per day and did not know Best was driving at the time of the collision, and (2) Best’s cell phone records showing he initiated the text message conversation as he got into his vehicle and sent the last text message (approximately seventeen seconds) before the collision. Id. at *2-3, 11.
Although Georgia’s laws on cell phone usage while driving are more relaxed than New Jersey’s, this case serves as a warning to those who knowingly exchange text messages with someone who is driving.