Texting and Driving
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 know that the recipient will read the message , but they must also know that the recipient will read it while driving . 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.