Brad StewartDavid J. Loughnaneby David J. Loughnane and Brad Stewart

If someone texts an individual while knowing that the person is driving a vehicle, the text sender may also be responsible for any injury or damages if the driver gets into an accident while reading or responding to that text. The texter may be held liable even when using a cell phone or electronic device far away from the place of the accident.

In an opinion handed down August 27, 2013, a New Jersey court stated, “We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.”*

This, apparently, is the first time a court has announced that someone participating in texting, even though not driving, can be held legally liable for the damages a victim of a vehicular accident received. This decision is likely to stir much debate among lawyers and judges. Also, the idea of imposing responsibility on someone knowingly involved in a distraction to the driver of a vehicle may increase public discussion of the hazards posed by texting and cell phone use while driving.

While the New Jersey court was careful to note that it would impose liability on a texter only under special circumstances where the texter knew or should have known the person receiving the text was driving, it is not hard to imagine many situations where a texter should know that the text recipient is likely to be driving.

For those who are the victim of a vehicular accident due to the other driver being distracted by a text or the use of an electronic device, you should try to obtain (through the police, directly from the other driver, or through your own personal injury attorney) the following information:

  • the cell phone number of the other driver
  • the name of the cell phone service provider
  • the name of the person or company who owns the account
  • the identity of any person the driver was communicating with
  • any details about that person’s cell phone account.

* Linda Kubert v. Kyle Best, Superior Court of New Jersey, Appellate Division, Docket # A-1128-12T4