Litigation Outlook: Sender Beware: Texting a Driver May Impose Liability on the Sender

Sep 04, 2013   

Last year, we wrote about the corporation’s responsibility to put a stop to the employee’s dangerous and potentially fatal habit of texting while driving. Several developments have occurred in this quickly changing area of law, including laws enacted within Florida which make texting while driving illegal. While laws themselves may lack the power to keep people from texting while driving, civil lawsuits seem to be making real progress at punishing the reckless texters.

In a recent landmark decision, the Superior Court of New Jersey – Appellate Division held, “[A] person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.” Kubert v. Best, 2013 WL 4512313, ___ A.3d ___ (N.J. Super. Ct. App. Div. 2013). A copy of the decision is available here. The court analogized the texting danger to the following hypothetical example:

A and B participate in a riot in which B, although throwing no rocks himself, encourages A to throw rocks. One of the rocks strikes C, a bystander. B is subject to liability to C. [Restatement § 876, comment d, illustration 4.] The example illustrates that one does not actually have to be the person who threw a rock to be liable for injury caused by the rock.

In refusing to distinguish the incident involving the rock thrower based upon the fact that the rock-thrower is not even present at the time of injury, the Court found that a texter is “electronically present” at the scene of injury. Indeed, the Court found no difference between the texting scenario and a duty which a passenger owes to the driving public to prevent an intoxicating driver from taking the wheel.

How far does the duty to avoid sending a text go? The Kubert court took pains to explain that not every text exposes a sender to potential liability. “[T]the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law.” More is required; the sender must take active steps to urge the driver to read and respond to the text while driving.

Still, we are at the infancy of a developing body of case law defining the parameters of “electronic duty” that we all need to be mindful of. Equally important, corporations need to have firm policies in place to ensure that those in the office do not force their drivers, or others, to immediately respond to texts while driving. Otherwise, based on the Kubert decision and its soon to be ever-growing progeny, the sender will be equally liable as the driver for any harm results from the text.

Sender beware.

If you have any questions about this issue, and specifically about how our lawyers can help your company implement a ban on your employees texting while driving, please feel free to contact us at 305-350-5690 or