Author: Chris Tieke, Contributing Member, University of Cincinnati Law Review
Kubert v. Best: New Jersey creates a new duty for a person sending a text to the driver of a vehicle.
Many states already make it illegal to text message while driving. However, in August a New Jersey court of appeals took an additional, drastic step to curb the dangers of texting and driving. In the case of Kubert v. Best, the court held that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the text sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.” Although the intent of the court to address the prevalent danger of texting and driving is laudable, the decision is far from clear regarding the burden of proof a plaintiff carries going forward. Additionally, the standard established by the court is difficult, if not impossible, to prove. Despite the confusion in this decision, it would not be surprising to see courts in other states create liability for those who text a person whom they know is driving a motor vehicle.
On the afternoon of September 21, 2009, eighteen-year-old Kyle Best left for the day from his part-time job at a YMCA in New Jersey.  After clocking out, he immediately sent a text message to his friend, Shannon Colonna. The text was one of sixty-two texts exchanged that day between Best and Colonna. The record did not reflect the content of the texts the two exchanged. On his drive home, in violation of New Jersey law, Best continued to send and receive text messages from Colonna. While driving, Best sent a text message to Colonna. She immediately responded. Within seconds of receiving the text from Colonna, Best responded. While responding to one of Colonna’s text, Best’s pick-up truck crossed the center-line of the road and struck David Kubert and his wife, Linda, who were both riding on David’s motorcycle. David and Linda were seriously injured in the accident. The Kuberts filed a claim against Best and Colonna for damages for personal injuries suffered in the accident. In a matter of first impression in New Jersey, the Kuberts alleged two theories against Colonna: (1) that she could be found liable because she aided and abetted Best’s unlawful texting while he was driving, and (2) that she owed an independent duty to avoid texting to a person who was driving a motor vehicle. The trial judge dismissed the Kubert’s claims, finding that Colonna did not have a legal duty to avoid sending a text message to Best, even if she knew he was driving. The court of appeals affirmed on the facts, however, contrary to the trial judge’s conclusion, the court found that a duty exists in certain situations for individuals who text the driver of a vehicle.
A New Legal Duty for Texters
The court of appeals applied the New Jersey Supreme Court’s framework for determining the existence of a duty, and created a limited duty on text message senders. Similar to a passenger physically present in the vehicle, a remote sender of a text who knows the recipient is driving has a duty to avoid distracting the driver. The court carved out a specific duty stating that an individual who “knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the sender of the text has a duty to users of the public roads to refrain from sending the driver a text at that time.” In creating this duty, the court found that a texter has a special relationship to other drivers when the texter knows that the message will reach the driver of a vehicle.
As further justification for creating a new duty, the court noted increased public awareness of texting and driving. The court found, much like the public’s knowledge that drinking and driving is dangerous, the hazards of texting and driving are becoming more apparent. By establishing a duty of care with respect to an individual texting a driver, the court recognized the serious danger posed by drivers who text and the increased public interest in preventing texting and driving.
As stated, now a breach of the duty occurs when the sender has “actual knowledge or special reason to know” that the recipient is driving and will view the text message while driving, “and thus be distracted.” According to the court, a person texting a driver whom the texter knows will view the message while driving, has disregarded the foreseeable risk that the recipient will view the message, be distracted, and injure others. Simply sending a text to a driver is not enough; the court created liability only in the limited instances when the sender “know[s] that the recipient is both driving and will read the text immediately […]”. No liability is imposed where an individual sends a text that an unidentified driver may receive and view or in situations where a sender directs a message to an individual who the sender knew was driving but was unaware that the recipient would read the message. Under the court’s standard, “actual knowledge or special reason to know” can be proven by prior texting experience and other evidence such as acknowledgment by the sender that the recipient is driving or testimony demonstrating that the sender knew the recipient had a proclivity for answering texts while driving. In this case, the Kuberts were unable to prove that Colonna breached her duty since they failed to produce evidence that Colonna knew Best was driving when she texted him or the Best would read the text message.
Must a Plaintiff Prove that the Driver was Distracted?
Under the court’s standard, to establish a duty, a plaintiff clearly must show (1) that the intended recipient was driving, and (2) that the recipient-driver was likely to read the text message while driving. Since the court in this case presumed distraction, it is unclear going forward whether a plaintiff must also show that the driver who received the text message was actually distracted. Specifically, the court stated that the sender of a text can be liable “only if the sender knew […] that the recipient would view the text while driving and thus would be distracted”. The court simply stated that a texter has knowingly engaged in distracting conduct when a text is sent to a driver who the texter knows will read the message immediately. The court compared this behavior to that of a passenger physically present in the car who urges a driver to take his eyes off the road, knows that the driver will be distracted, and will drive negligently as a result.
If distraction is presumed, then the court’s coda “and thus be distracted” is superfluous because a plaintiff would only be required to demonstrate that the texter knew the driver would view the text. Carrying the court’s logic further, it stands to reason that a driver who receives a phone call while driving, who then reads the phone number of the caller on the telephone screen, is distracted – perhaps even more so then a driver who briefly glances away from the road at the urging of the passengers. Adopting the court’s reasoning would also require that individuals who place a phone call to a driver be liable if the caller knew or had special reason to know that the recipient would view the phone number of the caller while driving. This would irrationally result in liability for anyone who makes a phone call to someone whom they know to be driving.
Perhaps the court’s presumption of distraction is due, in part, to New Jersey’s law prohibiting any use of a cell phone device by the driver of a motor vehicle unless the device is “hands-free.” In New Jersey, due to the heavy presumption of distraction, proof that the defendant was operating a hand-held cell-phone while driving is per se reckless driving under the “hands-free” statute. If the New Jersey court’s holding is adopted in other states without similar “hands-free” statutes, courts will likely have to explain whether distraction is an element that must be proven. They will also have to explain how the distraction from a text message is different than the distraction from a phone call and how liability can arise from one and not the other.
Any plaintiff attempting to prove the court’s new duty is facing a Herculean task. A remote texter is, by definition, not present in the recipient driver’s vehicle and lacks any first-hand knowledge of the circumstances surrounding the driver’s operation of the vehicle and any distractions caused by an incoming text. In this case, evidence showing that Colonna and Best, who were “seeing each other socially” and exchanged text messages daily (62 on the date of the accident) was not enough to prove that Colonna knew or had reason to know that Best would view the texts while driving. Although the court states that knowledge can be proven by “texting experience,” its evaluation of the facts seemed to imply that only some sort of “smoking-gun” text indicating the sender’s awareness that the recipient was driving (i.e. “Hey honey I know you’re driving but …”) would be enough to establish liability. The chance of such a text existing is unlikely, making it nearly impossible for a potential plaintiff to prove the text sender’s knowledge regarding whether the recipient is driving and that the driver would view the message on that given occasion.
Texting and driving is a serious issue for New Jersey, as well as nationwide. In particular, courts struggle to reconcile traditional legal principles with new advances in technology, some of which pose a danger when utilized in certain contexts. In this case, the court wanted an individual who sends a text to someone they know is driving to be held accountable for instances when the driver, distracted by the text, causes injury to others. The court did so by creating a new duty for senders of text messages. The exact duty owed, however, is unclear and the burden of proving a breach of that duty is extremely difficult. Given the elements of the tort and the difficult burden a plaintiff must carry, it is unlikely that this case will open the floodgates and cause a tsunami of cases where text message senders will be held liable for accidents caused by their driver recipients. However, the court did succeed in bringing attention to the issue and causing pause to New Jersey residents before they hit send on their cell phones. Rather than creating a new duty, it may be a more prudent choice to call on state legislatures to address the issue of civil liability in these types of situations and allow them to statutorily define the limits of what a driver or an individual communicating with that driver can and cannot do.
 Texting and driving is illegal in Ohio. See R.C. 4511.204.
 Kubert v. Best, No. A-1128-12T4, 2013 WL 4512313, at *1 (N.J. Super. Ct. App. Div. Aug. 27, 2013).
 Id. at *2.
 Id. See N.J.S.A. 39: 4-97.3 which makes it illegal to use a cell phone that is not “hands-free” while driving, except in certain emergency situations.
 Id. The record reflects the exact timing of the text messages. The three texts in boldface reflect texts that were exchanged while Best was driving.
5:49:15 911 Call by Best.
 Id. at *1.
 Id. The Kubert’s claim against Best for damages as a result of the accident was settled.
 Kubert, 2013 WL 4512313, at *3.
 Id. at *1. The court rejected plaintiff’s argument that Colonna aided and abetted Best’s negligent behavior.
 Id. at *11.
 Id. at *9.
 Kubert, 2013 WL 4512313, at *10.
 Id. at *10.
 Id. at *9.
 Id. at *7.
 Kubert, 2013 WL 4512313, at *9.
 Id. at *11.
 Id. at *1.
 Id. at *9.
 Id. at *8.
 See N.J.S.A. 39: 4-97.3.
 Id. at 39: 2C: 12-1(c)(1).
 Kubert, 2013 WL 4512313, at *2, *3.
 After this case the New Jersey Legislature enacted legislation that provides criminal penalties for drivers who are distracted by a cell phone while driving and injures others. See N.J.S.A. 2C:12-1(c)(1).