Friends don’t let friends text and drive. This ironic spin on an old slogan has now been turned into a legal duty not to text people when they are driving.
According to the New Jersey Appellate Division, “the sender of a text message can potentially be liable if an accident is caused by 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.” Kubert v. Best, 2013 N.J. Super LEXIS 132.
This language raises a lot of questions when it comes to practical application. The first of which is; what exactly is a special reason to know?
The Court explains, “If the sender knows that the recipient is both driving and will read the text immediately.” Id. at 28. If that’s the case, how is one expected to know whether or not the driver will read the text right away?
Forseeability plays a large role in the legal analysis of duty, and consequently, liability. In this situation the Court recognized that someone sending a text doesn’t need to assume that the person receiving it will read it immediately, especially when driving. However, the sender can know from past experience or past interactions with the driver that he or she will read a text right away even while driving.
Even sending a text with a question such as “What’s for dinner?” therefore requiring a response does not rise to the level of knowledge contemplated by the Court. The sender of the text must both know that the recipient is driving and know that he or she will read the text while still driving.
Currently there is a movement by some New Jersey legislators to pass a law negating this ruling. It is still in early stages and has not come to a vote in either house yet.
