A recent New Jersey Superior Court Appellate Division case may have found
a way to keep up with the rapid progression of technology as it applies to
motor vehicle accidents. On September 21, 2009, David and Linda Kubert were
seriously injured when the Defendant driver, Kyle Best crossed over the double center line
with his truck, striking their motorcycle. During the Discovery period,
it became apparent that the Defendant, Shannon Colonna had been text messaging
Best less than a minute before the
accident. The plaintiffs amended their complaint to include Colonna, alleging that
she was acting in concert (assisting) Best in his tortious conduct.
After the Plaintiffs settled their claims against Best, Colonna moved for
Summary Judgment. The Plaintiffs argued that Colonna could be held liable
for Best's conduct because she was "electronically present."
The trial court judge disagreed and granted the motion, concluding that
she did not owe a legal duty to the Plaintiffs to refrain from texting
Best while he was driving.
The appeals court narrowed the lower court's holding, explaining that
if a remote party knew or had a special reason to know that the recipient
of their text message was operating a motor vehicle, the remote party
could properly be held liable. However, the appeals court refrained from
reversing the order granting Colonna's Summary Judgment motion on
the grounds that there was insufficient evidence to prove that she had
the requisite knowledge.
The immediate holding is not unlike the Massachusetts's "Dram
Shop Rule." In Massachusetts, if a person provides alcohol to an
intoxicated person and that intoxicated patron subsequently causes an
accident, the bartender and/or the pub can be held liable. However, it
is important to note that not only must the sender of the text message
that the recipient
will read the message
, but they must also
that the recipient
will read it
. Although this could very well change the law in Massachusetts, the very
high standard of requisite knowledge necessary to impose liability would
be very difficult to prove.