In Kubert v. Best (Superior Court of New Jersey, App. Div. Docket No. A-1128-12T4, approved for publication August 27, 2013), the court held that an individual texter who knows or has a reason to know that the recipient of the text is driving and will read the text “owes a duty of care to users of the public roads to refrain from sending the driver a text at that time.”


On September 21, 2009, plaintiffs sustained serious personal injuries after the motorcycle they were riding on was struck by a motor vehicle being operated by Kyle Best (Best) that had crossed over the double center line of the roadway and into plaintiffs’ lane of travel.

During the course of discovery, it was determined that Best had texted his friend Shannon Colonna (Colonna) at 5:58:48 p.m. – the same time he crossed over the center line of the roadway. It was also determined that Colonna had sent Best a text message less then a minute before that, at 5:48:14 p.m. The actual messages exchanged between Best and Colonna could not be obtained, and neither Best nor Colonna furnished the context of their text messages during their deposition testimony.

The trial court concluded that “Colonna did not have a legal duty to avoid sending a text message to Best, even if she knew he was driving” and plaintiffs’ complaint against Colonna was dismissed.

Appellate Court Decision

In their appeal, plaintiffs argued that Colonna could be liable if a jury determines that her text to Best was a proximate cause of the accident. Specifically, plaintiffs contended that Colonna aided and abetted Best and, further, that “she had an independent legal duty to avoid texting to a person who was driving a motor vehicle … a jury can infer from the evidence that Colonna knew Best was driving home.”

The court held:

We are not persuaded by plaintiffs’ arguments as stated, but we also reject defendant’s argument that a sender of text messages never has a duty to avoid texting to a person driving a vehicle. We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. But we also conclude that plaintiffs have not presented sufficient evidence to prove that Colonna had such knowledge when she texted Best immediately before the accident.

However, the court also noted that, generally, a texter can presume that the recipient of the text will read the text at a safe point in time; and the sender of the text has only taken a foreseeable risk of harm if the “sender knows that the recipient is both driving and will read the text immediately.”

Potential Impact of the Decision

It appears the court intended to craft a fact-specific opinion with a narrow application. In drawing an analogy to the duty of a passenger in a moving vehicle, the court took special care to remind us several times throughout its decision that it is “still the primary responsibility of the driver to obey the law and avoid distractions.” They cite that “too broad a swath of potential liability” would be imposed if the duty required “avoid[ing] any conduct that might theoretically distract the driver.” Such a duty runs the risk of “unintentionally imposing liability” to “ordinary and innocent circumstances.”

Instead, the court will rely on the totality of the circumstances and the foreseeability factor. “[I]t is not generally foreseeable that every recipient of a text message who is driving will neglect [the] obligation to obey the law and will be distracted by the text.” Foreseeability is presumed only if the sender knows that the recipient is driving and will read the text immediately. Thus, the Appellate Court is directing the trial judges that this decision imposes a limited duty requiring “actual knowledge or special reason to know, from prior texting experience or otherwise,” that the driver will read the text while driving. This will be a high hurdle for plaintiffs as they will need to look to bring cases where there is evidence that the sender was actively encouraging the driver to read and respond while driving.

It is likely there will be an initial surge of cases testing the limits of duty and requiring further commentary from the court. It is unlikely the court will expand the duty beyond its very fact-specific analysis; it will demand actual proof and will reject inferences. “Even if a reasonable inference can be drawn that she sent messages requiring responses, the act of sending such messages, by itself, is not active encouragement that the recipient read the text and respond immediately, that is, while driving and in violation of the law.”