Court: New Jersey Superior Court Appellate Division; August 27, 2013; New Jersey; State Appellate Court
Plaintiffs Linda and David Kubert suffered severe injuries in a motorcycle accident caused by an eighteen-year-old driver, Kyle Best, who was texting while driving and crossed the center line. Their claims against Best have been settled, leaving the appeal focused on the Kuberts' case against Shannon Colonna, the seventeen-year-old friend who was texting Best prior to the incident. New Jersey law prohibits texting while driving, and a specific statute allows for fines and criminal penalties for distracted driving offenses. The 'Kulesh, Kubert, and Bolis Law' was enacted to impose criminal liability for causing injuries while using a cell phone. The court must determine if Colonna can be held liable for the Kuberts' injuries due to her texting, which requires showing that she knew or had reason to know her messages would distract Best while driving. The court found that the Kuberts did not present sufficient evidence to overcome summary judgment in Colonna's favor, affirming the dismissal of their complaint. The court emphasized that while it recognizes potential liability for remote texters, it did not adopt the trial court's rationale that such texters lack a legal duty to avoid messaging drivers. The incident occurred on September 21, 2009, resulting in both Kuberts losing their left legs due to the collision.
After the Kuberts filed a lawsuit, evidence was gathered concerning Best's activities on the day of the accident. Best and Colonna, who were socially involved but not exclusive, exchanged numerous texts—62 on the day of the accident—averaging nearly 14 texts per hour over a four-and-a-half-hour period. Best's phone records indicated he sent or received 180 texts in under 12 hours. Colonna admitted her habit of texting over 100 times daily and noted she did not consider whether recipients were driving while texting.
On the day of the accident, Best and Colonna communicated frequently, had lunch together, and he worked part-time at the YMCA, clocking in at 3:35 p.m. and out at 5:41 p.m. Colonna texted him at 3:49 p.m., but he did not respond immediately. After leaving work, Best texted Colonna at 5:42 p.m. and continued texting with both her and his father shortly thereafter. The accident occurred approximately four to five minutes after Best started driving home, with evidence showing he exchanged texts just before the crash.
Best initially denied texting while driving but later admitted to sending messages shortly after leaving the YMCA. A sequence of texts indicates he sent a message at 5:48:58, just seconds before the accident, which occurred shortly after he received a text from Colonna. The timeline suggests he was texting immediately before the crash, though the content of the messages exchanged remains unknown, as neither party provided that information during their depositions. Colonna, when deposed long after the incident, stated she did not remember the texts sent that day.
Colonna did not respond to two texts from Best shortly before a serious accident involving him, and she claimed to have "no idea" what those messages contained. After being added to a lawsuit by the plaintiffs, she sought summary judgment, arguing she had no liability since she was not at the accident scene, had no legal duty to refrain from texting Best, and was unaware he was driving. The trial judge, after reviewing the evidence and conducting legal research, agreed with Colonna, concluding she had no legal duty to avoid texting Best, even if she knew he was driving, and dismissed the claims against her.
On appeal, the plaintiffs contended that Colonna could be held liable if a jury found her texting was a proximate cause of the accident. They argued she aided Best's unlawful texting while driving and had an independent duty to avoid texting him while he was driving. They claimed it could be inferred that Colonna knew he was driving when she texted him just before the accident. The appellate court rejected the plaintiffs' arguments, while also dismissing Colonna's assertion that a sender never has a duty to avoid texting a driver. The court established that a texter has a duty to refrain from texting someone driving if they know or have special reason to know the recipient will view the text while driving. However, the plaintiffs failed to provide sufficient evidence that Colonna had such knowledge at the time of her text.
The court emphasized that in negligence claims, the plaintiff must prove four elements: duty of care, breach of that duty, proximate cause of injuries, and actual compensable injuries. It clarified that multiple defendants can be found liable for causing harm, and the existence of a duty is not negated by another party's duty to prevent the same harm. The jury can determine relative fault among defendants, assigning responsibility under comparative negligence statutes. The definition of duty was reiterated as a legal obligation requiring adherence to a specific standard of conduct toward others.
The term 'duty' refers to the obligation of an actor to conduct themselves in a specific manner, with the understanding that failing to do so may result in liability for injuries sustained by others. The determination of whether a duty of care exists is typically a judicial decision rather than one for a jury. The New Jersey Supreme Court has articulated that the critical inquiry in assessing duty is whether the interests of plaintiffs deserve legal protection against the defendant's actions. In analyzing the existence of a legal duty of care, courts consider factors such as the relationship between the parties, the nature of the risk, the ability to exercise care, and public interest, ensuring that the analysis is both fact-specific and principled. The courts must establish rules that are applicable beyond the specific case at hand. In the current case, plaintiffs contend that Colonna should be held to a duty of care for assisting Best in violating the law while driving by using a cell phone. They reference section 876 of the Restatement (Second) of Torts, which holds individuals liable if they knowingly assist another in breaching a duty. An example from the Restatement illustrates that one can be liable for encouraging harmful conduct even if they do not directly engage in the act. The New Jersey Supreme Court has recognized this principle in determining joint liability when individuals act together to cause harm. Here, plaintiffs argue that Colonna and Best engaged in concerted actions through text messaging.
Colonna, although physically remote from the accident site, is alleged by plaintiffs to have been 'electronically present' in Best’s truck prior to the accident, claiming she aided and abetted his illegal use of a cell phone while driving. In the case of Champion ex rel. Ezzo v. Dunfee, the court considered whether a passenger has a duty to prevent a visibly intoxicated driver from operating a vehicle. The court outlined that liability for a passenger arises only if there is a 'special relationship' that allows control over the driver or if the passenger actively encouraged the driver’s negligent behavior. Mere failure to intervene does not constitute liability. In Champion, the girlfriend of the intoxicated driver could not be held liable simply for not preventing the negligent driving, as she lacked a special relationship with him and did not actively encourage his actions.
Similarly, in Colonna's case, there is no evidence of a special relationship with Best, nor is there proof that she encouraged him to text while driving. Although she sent two texts shortly before the accident, the content is unknown, and sending messages alone does not equate to encouraging immediate responses while driving. The court also referenced Podias v. Mairs, where passengers failed to report an accident involving their drunk driver, highlighting that mere presence without active encouragement or intervention does not establish liability.
The driver and passengers fled the accident scene, resulting in a motorcyclist's death when another driver failed to see him. The court found that the passengers could be liable for "substantial assistance" to the driver for not fulfilling legal obligations to stay at the scene and notify authorities. An aiding and abetting theory was considered viable due to the passengers’ actions to conceal their involvement and encourage the driver’s illegal behavior. However, in this case, the evidence was insufficient to show that Colonna provided substantial assistance to Best in violating the law, as plaintiffs failed to demonstrate that Colonna urged Best to respond to her texts while driving.
Plaintiffs alternatively argued that Colonna had a duty not to text someone she knew was driving, but no supporting case law was found in New Jersey or elsewhere. The trial court referenced the case of Durkee v. C.H. Robinson Worldwide, where plaintiffs sought to hold the manufacturer of a text messaging device liable for a distraction that caused an accident. The court dismissed these claims, asserting that it was the driver's responsibility to avoid distractions, thus preventing an unreasonable expansion of product liability. Similar state court rulings also declined to hold cell phone manufacturers liable for driver distractions. The conclusion drawn is that merely sending a wireless transmission does not establish liability if a recipient unlawfully uses their phone while driving. Additional proof is required to demonstrate the sender's liability, specifically that the sender knew or had reason to know the recipient would read the message while driving and be distracted.
Negligence is established when an actor intends to influence another's conduct or should realize that their actions create an unreasonable risk of harm. The Restatement provides an example where a passenger distracts a driver, leading to an accident, illustrating that a passenger can be held liable for such negligence. A passenger has a duty not to interfere with the driver's operations, which can include obstructing the driver's view or diverting their attention. Liability may arise if a passenger urges the driver to look away from the road, but only if the passenger's actions are unreasonably risky, knowing the driver will likely be distracted and drive negligently. Primary responsibility lies with the driver to avoid distractions, and imposing broad duties on passengers could lead to excessive liability in benign situations. Courts must determine the scope of duty based on the totality of circumstances, emphasizing reasonable foreseeability of risk. It is foreseeable that a driver distracted by a text message might cause an accident, but it is not generally foreseeable that every text message recipient will neglect their driving obligations.
Sending a text message does not inherently require the recipient to act immediately, as recipients are expected to read messages only when it is safe to do so, such as when not driving. However, if the sender knows that the recipient is driving and likely to read the message immediately, the sender assumes a foreseeable risk and can be held liable for causing distraction. In cases involving third-party risks, a plaintiff must demonstrate that the defendant had actual knowledge or a "special reason to know" from prior interactions that the recipient would read the text while driving. This concept is supported by case law that emphasizes the importance of the relationship between parties, the nature of the risk, and the public interest.
When a sender texts a driver they know will read the message while driving, their responsibility parallels that of a passenger in a vehicle who must avoid distracting the driver. The sender's disregard for the potential harm to the public is significant, particularly given the severe consequences associated with texting while driving. The practicality of preventing risk also supports imposing a duty on senders, as it is relatively easy for them to refrain from texting a driver they know will be distracted. Overall, it is fair to impose this duty based on the ease of taking preventive measures and the serious nature of the potential harm, while ensuring that the duty does not extend to all texting scenarios indiscriminately.
Texters are not liable for the unlawful actions of others but can be held accountable for their own negligence if they knowingly disregard a foreseeable risk of serious injury. Public interest necessitates measures to deter dangerous texting while driving, akin to the societal campaign against drinking and driving. A concurring opinion questions whether a remote texter has an independent duty of care, stating that traditional tort principles are sufficient to determine that Colonna is not liable for the injuries of the Kuberts. The court has applied these principles to clarify the limited duty of a remote texter. Specifically, a texter has a duty to refrain from sending messages if they know the recipient is driving and likely to read the text while driving. In this case, evidence showed that Colonna and Best frequently texted, but there was insufficient proof that Colonna knew Best was driving and would read her text while doing so. Colonna sent only one text during the drive, and there was no evidence establishing her awareness of Best's intention to violate the law. Consequently, the lack of evidence to prove a breach of the remote texter's duty led to the proper granting of summary judgment in favor of Colonna. The relevant statute outlines the legality of using wireless communication devices while driving, emphasizing that it is unlawful unless specific conditions are met.
N.J.S.A. 2C:12-1(c)(1) establishes that a person commits assault by auto or vessel if they drive recklessly and cause serious or bodily injury to another. This offense is classified as a fourth-degree crime for serious bodily injury and a disorderly persons offense for bodily injury. Evidence of operating a hand-held wireless telephone while driving may imply recklessness. The amendment to this statute, effective July 18, 2012, does not apply to the current case, which lacks medical evidence regarding the injuries sustained by the Kuberts. The reasons for Colonna's absence from school that day are unspecified, while Best was a community college student working part-time.
The document also discusses the role of common law in judicial determinations where no specific statute exists, referencing notable cases that illustrate this tradition. Common law relies on judicial precedents for stability and predictability, while the Legislature can modify common law through new statutes. The courts may also diverge from common law when circumstances change or the law needs adjustment. The excerpt concludes with the assertion from Podias that passengers have a duty to assist injured individuals, such as by calling for help.
