And in Kubert v Best, the New Jersey Superior Court, Appellate Division says yes, you can be held liable.
The facts here are simple and tragic: Motorcycling husband and wife Linda and David Kubert were grievously injured by an 18-year-old driver, Lyle Best, who was texting while driving and crossed the center-line of the road in his pickup truck. Both required left leg amputations. Claims against Best settled. The Kuberts also wanted to sue the driver's 17-year-old friend, Shannon Colonna, who was texting Best much of the day, including a text sent immediately before the accident. As the Court summarized,
Best's cell phone record showed that he and Colonna texted each other sixty-two times on the day of the accident, about an equal number of texts originating from each. They averaged almost fourteen texts per hour for the four-and-a-half hour, non-consecutive time-span they were in telephone contact on the day of the accident.Indeed, based on cell phone records, it was established that Best last texted Colonna at 5:48:58 pm, responding to a text she sent 25 seconds earlier, and just 17 seconds later Best called 911 to report the accident. "Those seconds had to include Best's stopping his vehicle, observing the injuries to the Kuberts, and dialing 911," the Court notes. "It appears, therefore, that Best collided with the Kuberts' motorcycle immediately after sending a text at 5:48:58."
The telephone record also showed that, in a period of less than twelve hours on that day, Best had sent or received 180 text messages. In her deposition, Colonna acknowledged that it was her habit also to text more than 100 times per day. She said: "I'm a young teenager. That's what we do." She also testified that she generally did not pay attention to whether the recipient of her texts was driving a car at the time or not. She thought it was "weird" that plaintiffs' attorney was trying to pin her down on whether she knew that Best was driving when she texted him.
And while the Court found that there wasn't sufficient evidence in this case to find Colonna liable, because there was no evidence that she knew he was driving (and reading-and-texting-while-driving), other such texters could be forced to pay. To find out why, how, and when, keep reading.
Its analysis begins with a basic principle from the Restatement:
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.And cutting through a lot of both mumbo-jumbo and argle-bargle, here's what the Court concludes:
We hold that 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....And if you can be liable for directly causing the distraction, why not indirectly too?
Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.
Having considered the competing arguments of the parties, we also conclude that liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving. We conclude that additional proofs are necessary to establish the sender's liability, namely, that the sender also knew or had special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle....
It would be reasonable to hold a passenger liable for causing an accident if the passenger obstructed the driver's view of the road, for example, by suddenly holding a piece of paper in front of the driver's face and urging the driver to look at what is written or depicted on the paper. The same can be said if a passenger were to hold a cell phone with a text message or a picture in front of the driver's eyes. Such distracting conduct would be direct, independent negligence of the passenger, not aiding and abetting of the driver's negligent conduct.
The more relevant question is whether a passenger can be liable not for actually obstructing the driver's view but only for urging the driver to take his eyes off the road and to look at a distracting object. We think the answer is yes, but only if the passenger's conduct is unreasonably risky because the passenger knows, or has special reason to know, that the driver will in fact be distracted and drive negligently as a result of the passenger's actions.And if that's the case, why should you have to be in the car at all to be liable?
It is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text.If there's an appeal, or other developments in this area, I'll let you know.
Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.