Don't text a driver: civil liability of remote third-party texters after Kubert v. Best.

AuthorStrider, Emily K.

TABLE OF CONTENTS INTRODUCTION I. SETTING THE SCENE A. Kubert v. Best B. The Texting While Driving Epidemic in the United States C. Legislative Response II. THE CIVIL LIABILITY OF THIRD PARTIES A. Common Tort Duties B. Analogies to Similar Situations 1. The Passenger's Duty Not to Distract the Driver 2. Social Host Liability 3. Products Liability and Distracted Driving III. THE DIFFICULTY OF PROVING THE DUTY IN KUBERT A. Sender "Knows" that Recipient Will View the Message While Driving B. Sender "Has Special Reason" to Know that the Recipient Will Read the Message While Driving C. Special Relationship Between the Parties IV. COUNTERARGUMENTS A. Desperate Times Call for Desperate Measures 1. Comparison to Drunk Driving Epidemic B. Part of Larger Effort to Deter Texting While Driving CONCLUSION INTRODUCTION

In August 2013, the Superior Court of New Jersey made a bold move in an attempt to combat the harms presented by texting while driving. (1) Kubert v. Best articulated a duty to refrain from sending messages to someone who is driving if the texter knows, or has "special reason to know," that the recipient will view the text message while driving. (2)

In an age of constant communication and instant gratification, drivers increasingly choose to send and read text messages while driving instead of waiting until a safer time. (3) Texting while driving is undoubtedly a dangerous combination of activities, (4) and is now a serious problem in the United States. (5) In addition to public outcry, state legislatures have responded strongly to the problem--a response reminiscent of the drunk driving epidemic in the 1980s. (6)

The court's decision in Kubert v. Best is, therefore, in keeping with the trend of increasing penalties for texting while driving.' However, the new duty of care articulated in Kubert expands liability for third parties.

Although texting while driving is an increasingly important topic in the discussion of our nation's safety on the roads and has evoked a visible legislative response, (8) little has been done to examine civil liability in the context of text messaging and driving. Various scholarly articles have addressed the texting while driving epidemic and the legislative response. (9) However, few, if any, scholarly works address the civil liability of remote third-party texters. This is in part because few cases involving texting while driving have reached appellate courts. This Note fills that gap by analyzing remote third-party texter liability.

This Note will examine the potential civil liability of third-party texters against the backdrop of existing tort liability and through the lens of history and policy. This Note argues that liability should not be placed on the remote third-party texter. Doing so would extend third-party liability well beyond any articulated and established duty, and would depart from our current understanding of third-party liability. Ultimately, this Note concludes that because this duty expands liability and because it is difficult to prove, other states should not follow New Jersey's lead in creating this basis for civil liability.

Part I discusses the background in which this situation arises by analyzing the United States' texting while driving problem and the legislative response to it. Part II analyzes traditional civil liability imposed on third parties and explains how the new duty would play out in analogous situations. Part III considers the difficulties of proving this new duty. Part IV addresses counterarguments in favor of assigning liability to remote third-party texters.

  1. SETTING THE SCENE

    1. Kubert v. Best

      In 2009, husband and wife David and Linda Kubert were "grievously injured" when a pick-up truck driven by eighteen-year-old Kyle Best hit the motorcycle they were riding. (10) Best's vehicle crossed the center line into the Kuberts' lane, and the front of his vehicle struck the Kuberts and their motorcycle. (11) The Kuberts were seriously injured--both lost their left legs as a result of the accident. (12) Telephone records revealed that right before the accident, Best and his friend, Shannon Colonna, exchanged text messages while Best was driving his vehicle home from work. (13) When the accident occurred, New Jersey had already passed a law prohibiting texting while driving except in specific emergency situations. (14)

      In addition to suing Best for his negligence, (15) the Kuberts also sued Colonna, claiming that she had an "independent duty to avoid texting to a person who was driving a motor vehicle" because her "electronic[] presence]" in the vehicle as a result of her text message conversation with Best constituted "aiding and abetting" Best's illegal cell phone use while driving. (16) The court articulated the new duty of care in the appeal of entry of summary judgment for Colonna. (17) It decreed that "a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving." (18) However, the court went on to say that in this particular case, the "plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident." (19) Accordingly, the court affirmed the grant of summary judgment in Colonna's favor. (20)

      The majority did not hold Colonna liable because "the evidence ... [was] not sufficient to conclude that Colonna took affirmative steps and gave substantial assistance to Best in violating the law." (21) However, although the court acknowledged that "[i]t is the primary responsibility of the driver to obey the law and to avoid distractions," they nonetheless imposed a duty on the sender of a text message to refrain from texting someone who is driving in certain circumstances. (22)

    2. The Texting While Driving Epidemic in the United States

      Text messaging has quickly become a very common method of communication in the United States. As of June 2010, over 173 billion text messages were sent per month compared to only 12.2 million per month in June 2000. (23) Although texting is certainly a useful form of communication, research shows that sending a text message while driving requires the driver to take her eyes off the road for approximately 4.6 seconds. (24) This equates to driving at fifty-five miles per hour for the length of a football field without looking at the road. (25)

      A form of "distracted driving," texting while driving and its dangers have been studied extensively, both through research simulations and analyses of historical data. Researchers have found that drivers who text are twenty-three times more likely to be involved in a safety-critical event than if they refrained from texting. (26) Furthermore, based on their analysis of historical data on road fatalities, cell phone subscriber rates, and estimated text message volumes, researchers Fernando Wilson and Jim Stimson concluded that "recent and rapid increases in texting volumes have resulted in thousands of additional road fatalities yearly in the United States." (27)

    3. Legislative Response

      Legislatures have recognized the dangers of texting and driving and have taken steps to discourage the practice. Forty-four states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands currently prohibit all drivers from text messaging. (28) Other states have enacted less comprehensive bans. For example, some states prohibit texting while driving for novice drivers or public transit drivers. (29)

      The New Jersey law is a typical example of banning texting and driving. It states that "the use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands-free wireless telephone or the electronic communication device is used hands-free." (30) Violation of this statute is a primary offense in New Jersey and carries a fine of $100. (31)

      Following the Kuberts' accident and other traffic accidents involving texting while driving, New Jersey enacted additional legislation to address the dangers presented by texting while driving. The new law, named "Kulesh's, Huberts' & Bolis' Law," amends the vehicular homicide statute to allow an inference of reckless driving if the defendant was using a cell phone in violation of the ban on texting while driving. (32) This law also provides criminal penalties for drivers who injure others while texting and driving. (33) In addition to its inclusion in the vehicular homicide statute, this inference was also added to New Jersey's "assault by auto" statute, which addresses situations in which a person drives a vehicle recklessly and causes bodily injury to another. (34)

      The key element in both the vehicular homicide and assault by auto statutes is the reckless driving of a vehicle. (35) With this amendment, the prosecution in a case of death by vehicular homicide or assault by auto can rely on the impermissible cell phone use to infer that the defendant was driving recklessly. (36) Although such an inference is not binding on the jury, the jury may rely on the inference alone to find that the defendant was driving recklessly. (37) Thus, these amendments make it easier for the state to obtain convictions in cases of vehicular homicide and assault by auto where the defendant was texting while driving in violation of the statutory ban.

      Although the legislative response has surely helped deter texting while driving, the legislature's decisions are not without criticism. (38) One principal problem with bans on texting while driving lies in their enforcement. (39) Enforcing laws that prohibit texting while driving by a class of drivers, such as novice drivers, is often unworkable for police officers as it is difficult to determine the age of a driver from a distance. (40) Additionally, statutes that allow for only secondary enforcement...

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