NJ Appeals Court Establishes Theory of Liability for Texting a Driver

by Brian Pasquale, Law Clerk

A New Jersey appeals court (read the decision here) has issued a decision that has made national headlines because the court stated a scenario where someone sitting at their house sending a text message could be held liable for the person reading the text message causing a motor vehicle accident.  However while the case appears to give cell phone users reason to be hesitant to use their phone as much, the decision was extremely limited and requires a substantial amount of evidence to hold someone sending a text message liable.


Linda and David Kubert (“Plaintiffs”) were injured by an eighteen-year-old driver who, after being distracted while sending a text message, crossed the center of the road and struck the Plaintiff’s motorcycle, resulting in the Plaintiffs each losing their left leg.  After filing suit against the driver, Plaintiffs’ attorney discovered who the driver was texting and the extent of their exchange of text messages that day, Plaintiffs added that individual to the lawsuit (“Defendant”).  The Defendant thereafter moved for summary judgment and the trial judge determined that she did not have a legal duty to avoid sending text messages to the driver, even if she was aware that he was driving. *1

Court’s Decision

Plaintiffs appealed the trial court judge’s decision and argued that the Defendant aided and abetted the driver’s violation of the law*2 and that she had a duty to avoid texting an individual who was driving and that a jury can infer that she knew the driver was driving when she sent the message.  The appellate court analogized the situation to when a passenger in a motor vehicle owes an affirmative duty to another passenger to prevent a clearly intoxicated driver from operating his own vehicle.  Two conditions were identified where this duty existed: (1) a special relationship that gave the passenger control over the driver’s conduct, for example an employer-employee or parent-child relationship and (2) the defendant passenger actively encouraged the driver to commit the negligent act.  Following this analogy the court concluded that the Defendant did not have a special relationship where she was in a position to control the driver of the vehicles conduct and second the court determined that there was no evidence that the Defendant actively encouraged the driver to text her while driving.

While the court held in the Defendant’s favor, they also provided guidance for future decisions and gave a scenario where an individual who texted someone while driving could be held liable for the accident.  A person is not liable simply because they are aware someone is driving, additional evidence is required to show that the sender of the text message knew or had special reason to know that the driver would read the message while driving and be distracted from operating the vehicle.


While the decision opened eyes nationwide due to the misleading headlines on many websites that individuals who send text messages to someone who opens them and is in an accident can be held liable, the court made clear that such situations will be extremely limited because the plaintiff does not only have to establish that the person knew the other individual was driving but also that they had a special reason to know that they would open the text while driving.

1* Plaintiffs settled their claim against the driver thus the only issue regarding liability on appeal was whether the Defendant was also negligent in the matter.

2* “The use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands free wireless telephone or the electronic communication device is used hands-free” N.J.S.A. 39:4-97.3

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