I'm sure you've all seen the campaigns like "It Can Wait," as well as the common theme storyline on various television shows, where the teenager is involved in an accident because she was texting. In real life, states have begun legislating specifically to combat the scourge of distracted driving due to texting. New Jersey's treatment of the problem has some teeth and is continuing to develop.

Initially, there is a moving violation component. It is illegal in New Jersey to use any device while driving unless it is both hands-free capable and is being used in a hands-free manner. Most new vehicles and new devices have applications that allow you to dial and some allow you to text hands-free with voice recognition software. Learn to use them. Violation of this statute carries a $100 fine. N.J.S. 39:4-97.3.

Secondly, there is a criminal component. If you cause injury in an accident while you are using a cell phone, you can be found guilty of a fourth-degree crime – assault by auto – which can carry jail time. N.J.S. 2C:12-1(c)(1). The criminal violation is not automatic, but rather violation of the moving violation statute creates an inference of the assault by auto statute.

Now case law has expanded civil penalties beyond the driver to the person texting the driver. On August 26, 2013, in Kubert v. Best, the Appellate Division handed down an opinion holding that a duty exists on the part of the person sending the text. Additionally, that duty is breached if the texter knows or has special reason to know that the recipient is driving and will read the text while driving, thus being distracted. While one might expect the defendant in that case to appeal the decision, it is unlikely. In an interesting twist, the Appellate Division also found that the plaintiff in that case failed to show that the defendant knew the driver would be distracted.

In Kubert, a 17-year-old teenage girl, Shannon Colonna, sent a series of texts to her friend, 18-year-old Kyle Best, who was in the process of leaving his part-time job and driving home. While rounding a curve, Best crossed the center line of traffic and collided with the plaintiffs, who were riding a motorcycle in the opposite direction. Each plaintiff sustained severe injuries, including amputation.

During discovery, plaintiffs' counsel developed information that the timing of the text messages coincided with the happening of the accident. The last text message from the driver to Colonna was sent just 17 seconds before the 911 call from the same cell phone. The court inferred that the text was in response to the prior text, received 25 seconds earlier.

The matter was settled with Best. However, Colonna proceeded to file a motion for summary judgment, arguing that no duty existed because she was not in the vehicle at the time of the accident and did not know Best was driving when she was texting him. She further argued that even if a duty existed, she did not breach that duty. Plaintiffs argued that Colonna was "electronically present" in the vehicle, and that her distraction of the driver constituted a breach of a duty proscribing such distraction. The trial court dismissed the claims against Colonna, holding that she had no duty to avoid sending text messages to Best, even if she knew he was driving.

The Appellate Division disagreed with the trial court's interpretation of the duty. In a 40-page opinion, the Court held that a duty does exist on the part of a person sending a text, but the standard for that duty is high. First, the Court held that the "texter" must know or have special reason to know that the recipient of the text is driving. However, simple evidence that the sender knew that the recipient was driving at the time the text was sent is insufficient. The Court also held that the sender must either know or have special reason to know that the driver would read the message while driving and, therefore, be distracted by it. In so holding, the Court relied on opinions within New Jersey and other states that essentially establish that liability exists only if affirmative steps are taken that will create it.

The Court went further still to ensure that its point on this topic was not missed. Although not argued by either side, the Court discussed the Restatement view that a passenger in a vehicle has a duty to avoid distracting the driver unnecessarily. Restatement (Second) of Torts, §303. The Court analogized that such liability would extend to a passenger who held a cell phone in front of the driver, encouraging the driver to distract his attention from the road. However, the Court quickly noted that simply sending a text message to a driver is not the same as holding the text message in front of the driver's eyes. It remains the responsibility of the driver to not be distracted.

Although the Court took great pains to avoid opening the flood gates of litigation by extending potential liability to anyone with a cell phone (read: pretty much everyone), we wonder whether the Court has not really done just that. When the New Jersey Supreme Court decided the standard for circumventing the exclusive remedy provision of the Workers' Compensation Act, it tried to make very clear that the standard was extremely high. The bar reacted by filing a flurry of cases directly against employers, claiming that the facts supported such a finding. We expect nothing less here. Add to that the certain coverage attacks from homeowners insurance carriers, and the Brave New World of ever-expanding liability and litigation continues.