The ABA Journal reports:
In a case of first impression, a New Jersey appeals court has held that a remote texter can be held liable to third parties for injuries caused when the distracted driver has an accident.
However, that is only true if the individual sending the texts from another location knew they were being viewed by the recipient as he or she was driving. And, in the case at bar, the trial court correctly held that insufficient knowledge was shown to defeat a motion for summary judgment by the defendant texter, 17-year-old Shannon Colonna, the Appellate Division of New Jersey Superior Court ruled. An accident that caused serious injury to two motorcyclists occurred within less than 30 seconds of when phone records show the driver, 18-year-old Kyle Best, last received a text from her.
"We conclude 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," explains the court in a Tuesday opinion. (PDF). "But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident."
There was no evidence that Colonna "actively encouraged" Best to text her while he was driving, the court said, and "Colonna did not have a special relationship with Best by which she could control his conduct," the appellate panel said.
Colonna had sent two texts to Best on the September 2009 afternoon when the accident occurred, and the other one was sent about two hours before the accident. The content of the messages isn't known, the court noted.
"Even if a reasonable inference can be drawn that she sent messages requiring responses, the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law."
The claims of the plaintiffs, David and Linda Kubert, against the driver were previously settled.