A New Jersey appellate court recently held that texting to a driver you know is reading your texts, or is likely to do so, while driving, can make you liable, along with the driver, for any resulting accidents (Kubert v. Best, 2013 WL 4512313, N.J. Super. App. Div. Aug. 27, 2013). This is the first case in the nation expanding tort liability for car accidents to remote texters. Until now, only the texting driver could be held liable for the accident he caused while texting, not the companion texting with him from some remote location.
The case was cleverly argued by plaintiffs’ counsel. They pointed to case law that said a passenger in a motor vehicle has a duty “not to interfere with the driver’s operations”. For example, it has long been the rule that a passenger can be held liable, along with the driver, for showing him a road map to read while driving where the distraction causes an accident.
Plaintiffs’ lawyers also pointed to case law that said someone who “aids and abets” a tortfeasor in committing a tort is equally liable for the tort. For example, if a friend is throwing stones from a bridge onto a highway below, and you encourage him to do it, even though you are not doing it yourself, you, along with your friend, can be held liable to those injured below.
Given this existing case law, it was not such a stretch for the Court to conclude that sending texts to a driver you know will read the text while driving constitutes “aiding and abetting” the driver in breaking the law.
I predict that eventually, when the right case comes along, New York courts will follow suit. The rule makes sense. New York already has a Statute (Motor Vehicle & Traffic Law § 1225-d) providing that “no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion”. It is not such a stretch to hold a participant liable for exchanging texts with a driver, as long as the participant knew, or should have known, the driver was breaking the law by reading the texts or texting back while driving.
DISLAIMER: In the event that this blog post has just popped up on your smart phone while driving, please note that I have no knowledge you are reading it while driving!!
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Michael G. Bersani, Esq.
michaels-smolak.com Central and Syracuse NY Auto Accident Lawyers
Michaels & Smolak, P.C.