Kubert v. Best, A-1128-12T4; Appellate Division; majority opinion by Ashrafi, J.A.D.; concurrence by Espinosa, J.A.D.; decided and approved for publication August 27, 2013. Before Judges Ashrafi, Espinosa and Guadagno. On appeal from the Law Division, Morris County, Docket No. L-1975-10. D.D.S. No. 36-2-1132 [40 pp.]

David Kubert was riding his motorcycle. His wife, Linda Kubert, was riding as a passenger. As they came around a curve, a pick-up truck driven by 18-year-old Kyle Best crossed the double center line of the roadway into their lane of travel and struck them. Best called 9-1-1 at 15 seconds after 5:49 p.m. That was 17 seconds after he sent a text to Shannon Colonna, a 17-year-old girl who had been texting him most of the day. It can be inferred that his text to her was in response to her text to him that he received 25 seconds earlier. New Jersey law prohibits texting while driving.

The Kuberts each lost their left legs as a result of the accident. Their claims for compensation from Best have been settled. They appeal the trial court's dismissal of their claims against Colonna, arguing that she is potentially liable to them if a jury finds that her texting was a proximate cause of the accident.

Held: The sender of a text message from a remote location can be liable under the common law if an accident is caused because the driver was distracted by the 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. Plaintiffs have not presented sufficient evidence to prove that the texter here had such knowledge when she texted the driver immediately before the accident.

Relying on section 876 of the Restatement (Second) of Torts (1965), plaintiffs argue that a duty of care should be imposed on Colonna because she aided and abetted Best's violation of the law when he used his cellphone while driving. Under section 876 of the Restatement, an individual is liable if he knows that another person's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other.

The panel cites Champion ex rel. Ezzo v. Dunfee, 398 N.J. Super. 112 (App. Div.), certif. denied, 195 N.J. 420 (2008), which analyzed Restatement § 876 in a context where the defendant was at the site of the accident. Plaintiff, a backseat passenger, sued the driver's girlfriend, who had been sitting in the front seat, on a theory that she had a duty to prevent her boyfriend from driving because she knew he had been drinking. Champion concluded that the law permits recovery against a passenger if there was a "special relationship" that gave the passenger control over the driver's conduct, such as a parent-child relationship, and if the defendant passenger actively encouraged the driver to commit the negligent act.

Colonna did not have a special relationship with Best by which she could control his conduct. Nor is there evidence that she actively encouraged him to text her while he was driving. The act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately while driving. Thus, the evidence is not sufficient to prove Colonna's liability to plaintiffs on the basis of aiding and abetting Best's negligent driving while using a cellphone.

The panel says no New Jersey case supports plaintiffs' alternative argument that Colonna independently had a duty not to send texts to a person who she knew was driving a vehicle. One federal case and two out-of-state cases appropriately lead to the conclusion that one should not be held liable for sending a wireless transmission simply because some unidentified recipient might use his cellphone unlawfully and become distracted while driving.

The panel concludes 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. Additional proofs are necessary to establish the sender's liability, i.e., 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.

The panel says courts have recognized that a passenger who distracts a driver can be held liable for the passenger's own negligence in causing an accident. Such distracting conduct is direct, independent negligence of the passenger, not aiding and abetting of the driver's negligent conduct.

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 be distracted by the text. 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. However, if the sender knows that the recipient is driving and will read the text immediately, then the sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.

The panel says this conclusion is supported by the "full duty analysis" described by the Supreme Court — identifying, weighing, and balancing the parties' relationship, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. When the sender texts a driver, knowing that the driver will immediately view the text, the sender has disregarded the attendant and foreseeable risk of harm to the public. The sender has an easy means to exercise care: avoid texting to such a driver. The limited duty imposed here will not hold texters liable for the unlawful conduct of others, but for their own negligence when they have knowingly disregarded a foreseeable risk of serious injury to others. Finally, the public interest requires fair measures to deter dangerous texting while driving.

Judge Espinosa concurs in the result but writes separately to opine that traditional tort principles provide adequate guidance to determine whether liability should be imposed in such circumstances and it is not necessary to articulate a new duty specific to persons in remote locations who send text messages to drivers.

For appellants — Stephen S. Weinstein (Stephen S. Weinstein, P.C.; Weinstein and Gail S. Boertzel on the brief). For respondent — Joseph J. McGlone (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P.; McGlone and Anthony J. Bianco on the brief).