Kubert v. Best
75 A. 3d 1214, 432 NJ Super. 495 (2013)
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Rule of Law:
The sender of a text message has a duty to refrain from texting a person who they know is driving if the sender also knows or has special reason to know that the driver is likely to read the text message while driving.
Facts:
- On September 21, 2009, eighteen-year-old Kyle Best and seventeen-year-old Shannon Colonna exchanged sixty-two text messages over the course of the day.
- After finishing his part-time job, Best began driving home at approximately 5:42 p.m.
- While driving, Best engaged in a text message exchange with Colonna.
- Colonna sent Best a text message at 5:48:14 p.m.
- Best sent a text message in reply to Colonna at 5:48:58 p.m.
- Immediately after sending the text, Best's pick-up truck crossed the center line of the road.
- Best's truck struck a motorcycle carrying David and Linda Kubert.
- As a result of the collision, both David and Linda Kubert suffered catastrophic injuries that resulted in the amputation of their left legs.
Procedural Posture:
- Linda and David Kubert filed a lawsuit against the driver, Kyle Best.
- The Kuberts' claims against Best were settled.
- The Kuberts then added Best's friend, Shannon Colonna, as a defendant in the lawsuit.
- In the trial court, Colonna moved for summary judgment to have the claims against her dismissed.
- The trial court judge granted Colonna's motion for summary judgment, finding she had no legal duty to the Kuberts.
- The Kuberts (plaintiffs-appellants) appealed the trial court's decision to the Superior Court of New Jersey, Appellate Division, with Colonna as the defendant-appellee.
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Issue:
Does a person who sends a text message to another person have a legal duty to third parties who are injured by the recipient's distracted driving?
Opinions:
Majority - Ashrafi, J.A.D.
Yes, a sender of a text message can have a legal duty to third parties injured by the recipient's distracted driving. This duty arises only when the sender knows or has special reason to know that the recipient is driving and is likely to read the text immediately, thus creating a foreseeable risk of distraction. The court rejected the plaintiffs' aiding-and-abetting theory, finding no evidence that Colonna actively encouraged Best to text while driving. Instead, the court established a new, limited duty by analogizing the remote texter to a passenger who has a duty not to distract the driver. This duty is based on a 'full duty analysis' considering the relationship between the parties, the foreseeability of the risk, the ability to exercise care, and public interest. Although the court established this new duty, it found that the plaintiffs in this specific case did not present sufficient evidence to prove that Colonna knew Best would immediately read her text, and therefore Colonna was not liable.
Concurring - Espinosa, J.A.D.
Yes, a remote texter could potentially be liable, but the court should not create a new, specific duty to determine this. Traditional tort principles, specifically the theory of aiding-and-abetting liability under Restatement (Second) of Torts § 876, are sufficient to analyze such cases. Creating a new duty is unnecessary and over-complicates the analysis. Under the existing aiding-and-abetting framework, a plaintiff must prove the defendant gave 'substantial assistance' to the wrongful act. In this case, Colonna was not physically present, her 'assistance' was slight, and there was no evidence of active encouragement. Therefore, applying traditional principles, her conduct was insufficient to impose liability, and the case against her should be dismissed without establishing a novel legal duty.
Analysis:
This case is significant for establishing a new, albeit limited, common law duty for remote texters, expanding traditional tort liability to individuals not physically present at the scene of an accident. It adapts negligence principles to the realities of modern communication technology, recognizing that a remote party can be a proximate cause of harm. However, the court set a high evidentiary standard for plaintiffs, requiring proof of the sender's specific knowledge of the driver's dangerous behavior (i.e., that they would read the text immediately). This decision serves as a legal warning about the dangers of distracting drivers but also limits liability to cases where the sender is more than just a passive communicator.
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