Kubert v. Best (N.J. Super. Ct. App. Div. Aug. 27, 2013) holds:
We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.
I’ve been critical of various extensions of tort liability in the past, but this decision strikes me as quite sensible. Say Sally sends a message to Don, who is driving; Don reads the message, is distracted by it, and hits and injures Paul.
Don has a responsibility to act reasonably when his conduct — driving and reading text messages — foreseeably creates a risk of harm to others, so he’s liable for reading the message when he should have been paying attention. But Sally also has a responsibility to act reasonably when her conduct (sending text messages) foreseeably creates a risk of harm to others, and that’s so even though the risk is produced only as a result of the combination of her conduct and Don’s.
If Sally were sitting in the passenger seat and doing things that she knew would likely seriously distract Don, and Don got into an accident as a result, both she and Don would be liable. That Sally is distracting Don remotely doesn’t, I think, change the analysis, if she knows or has special reason to know that Don would view the text while driving. To quote the court,
One form of [tortious] interference with a driver might be obstructing his view or otherwise diverting his attention from the tasks of driving. It would be reasonable to hold a passenger liable for causing an accident if the passenger obstructed the driver’s view of the road, for example, by suddenly holding a piece of paper in front of the driver’s face and urging the driver to look at what is written or depicted on the paper. The same can be said if a passenger were to hold a cell phone with a text message or a picture in front of the driver’s eyes. Such distracting conduct would be direct, independent negligence of the passenger, not aiding and abetting of the driver’s negligent conduct. Here, of course, Colonna did not hold Best’s cell phone in front of his eyes and physically distract his view of the road.
The more relevant question is whether a passenger can be liable not for actually obstructing the driver’s view but only for urging the driver to take his eyes off the road and to look at a distracting object. We think the answer is yes, but only if the passenger’s conduct is unreasonably risky because the passenger knows, or has special reason to know, that the driver will in fact be distracted and drive negligently as a result of the passenger’s actions.
To be sure, courts have realized that there must be limits on liability for distracting drivers. We are constantly surrounded by potentially attention-grabbing things (such as billboards, landing helicopters, football games, and bungee jumpers, to give a few examples from the cases). By and large, drivers can avoid getting unduly distracted by them, and imposing liability for any such distraction of drivers would interfere too much with legitimate activity by others within sight of the roads. As a result, courts have generally concluded that one’s duty to act reasonably when one’s conduct foreseeably creates a risk of harm to others shouldn’t apply when the risk is solely a risk of distracting drivers through one’s interesting conduct. As one such case (Lompoc Unified School Dist. v. Superior Court (Cal. App. 1993)) put it,
Motorists are routinely exposed to a melange of off-road distractions which may include sporting events, low-flying aircraft, billboards, Christmas displays, rock concerts, brush fires, or unusually or scantily attired pedestrians. Travelers who, in the manner of Homer’s ancient Argonauts, must sail past Sirens, are obliged to exercise reasonable care in the navigation of their craft and resist being seduced by sights and sounds.
Likewise, even as to texting, the court reasons that,
It is the primary responsibility of the driver to obey the law and to avoid distractions. Imposing a duty on a passenger to avoid any conduct that might theoretically distract the driver would open too broad a swath of potential liability in ordinary and innocent circumstances…. [C]ourts must be careful not to “create a broadly worded duty and … run the risk of unintentionally imposing liability in situations far beyond the parameters we now face.” …
It is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text. Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle.
But what is true of items that are seen by many people, including nondrivers, are valuable to many people, and aren’t distracting in the way that specific things aimed at you personally are distracting — or what is true of a typical text, which most recipients won’t view when driving — may not be true of a text sent deliberately to you by someone who knows or has special reason to know that you’ll view it when driving. There thus seems to be much less of a reason for a broad no-duty-to-avoid-distracting rule, and the court’s intermediate rule (neither no duty nor a general duty to exercise reasonable care when texting, which might be interpreted as making texting actionable whenever there’s some chance that the reader will read the message) makes sense. As the court reasons,
However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk [here, meaning an unusually high risk -EV] in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction….
Limiting the duty to persons who have such knowledge will not require that the sender of a text predict in every instance how a recipient will act. It will not interfere with use of text messaging to a driver that one expects will obey the law. The limited duty we impose will not hold texters liable for the unlawful conduct of others, but it will hold them liable for their own negligence when they have knowingly disregarded a foreseeable risk of serious injury to others.
And in this particular case, the court concluded that there wasn’t enough evidence that the texter had the requisite knowledge or specific reason to know. “Colonna sent only one text while Best was driving. The contents of that text are unknown. No testimony established that she was aware Best would violate the law and read her text as he was driving, or that he would respond immediately. The evidence of multiple texting at other times when Best was not driving did not prove that Colonna breached the limited duty we have described.”
Note that a concurring judge disagreed with the analysis, and wouldn’t have recognized the duty the court recognized: “Even assuming that Colonna knew Best was driving, her conduct in sending a text under the circumstances here amounted to that of a companion who merely participated in the same activity and who did not actively encourage Best to ignore applicable law and safety hazards.” And absent such active encouragement, the concurrence reasoned, even texting that one knows creates a risk of harm to others (in conjunction with the recipient’s expected dangerous behavior) should not be actionable negligence. Thanks to Douglas Nicolaisen for the pointer.