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Sending a Text to a Driver? Think Again, You May be Liable in NJ

By Gabriella Khorasanee, JD on September 04, 2013 | Last updated on March 21, 2019

DWI has taken on new meaning: Driving While Intexticated. In 2011, 23% of auto crashes involved cell phones, and text messaging while driving makes a crash 23x more likely. And while Slate reports that 41 states have enacted some sort of cell phone usage while driving prohibition, the laws have had little effect on the statistics.

Last week, the Appellate Division of the New Jersey Superior Court sought to change that, reports CBS. In a case that's the first of its kind, the court held that someone not in the car, sending text messages to a driver that ends up in an accident, could be liable for the accident.


Kyle Best was texting while driving, and as a result, swerved over the double center line of the road and hit Mr. and Mrs. Kubert, who were riding a motorcycle. The injuries the Kuberts suffered were so serious that they both lost their left legs. The Kuberts and Best settled their claims out of court. However, the Kuberts also filed a claim against Best's friend -- Shannon Colonna -- who was texting Best at the time of the accident.

During trial, Colonna moved for summary judgment, which the trial court granted. The court concluded there was no legal duty prohibiting Colonna from texting Best, even if she knew he was driving. Though the New Jersey Appellate Division affirmed the trial court's grant of summary judgment, it came to a different conclusion regarding text-sender liability.

New Jersey Common Law

Absent statutory law, and case law, the court had to determine whether someone texting a driver from a remote location could be liable for an accident that occurs as a result of distracting the driver. The court held that a person could be liable in this instance if two factors are met. A plaintiff must show that "the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."


Slate surmises that this kind of precedent has been established before in the drunk driving context, where bartenders and party-hosts are held liable for allowing people to drive home drunk. Laws such as these are usually meant to send a message to citizens to take more responsibility for their actions, though they are not necessarily enforced frequently.

The New Jersey Appellate Divisions decision may seem extreme, but with the number of fatalities from text-related car crashes, the message needs to be driven home to texters one way or another.

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