Here’s a big decision out of New Jersey last week. The plaintiffs are a married couple who were “grievously injured by an eighteen-year-old driver who was texting while driving and crossed the center-line of the road.” The instant action wasn’t against the driver, though – the plaintiffs’ claims against him had already been settled. In last week’s matter, the plaintiffs were going after “the driver’s seventeen-year-old friend who was texting the driver much of the day and sent a text message to him immediately before the accident.” A lower court had dismissed the claims against the friend, and so this appeal followed.

Though texting while driving is illegal in the state of New Jersey, but the liability of the personal with whom the driver is texting is an issue that’s yet to be addressed. In its opinion, the court wrote:

We must determine as a matter of civil common law whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.

The court’s analysis reminds us of the principles of negligence, particularly that of duty. Did the sender owe a duty to the plaintiffs, who first argue that she (sender) was “electronically present” in the pick-up truck that hit their motorcycle, and that the sender “aided and abetted (driver’s) unlawful use of his cell phone.” This particular argument does not convince the court:

Plaintiffs produced no evidence tending to show that Colonna (sender) urged Best (driver) to read and respond to her text while he was driving. The evidence available to plaintiffs is not sufficient to prove Colonna’s liability to the Kuberts (plaintiffs) on the basis of aiding and abetting Best’s negligent driving while using a cell phone.

Next, they make an argument that, as the court observes, is something of a long shot:

Plaintiffs argue alternatively that Colonna independently had a duty not to send texts to a person who she knew was driving a vehicle. They have not cited a case in New Jersey or any other jurisdiction that so holds, and we have not found one in our own research.

The court gives this theory a bit more credence, first citing general precedent:

We have recognized that a passenger who distracts a driver can be held liable for the passenger’s own negligence in causing an accident. In other words, a passenger in a motor vehicle has a duty “not to interfere with the driver’s operations.”

In the context of texting, though, things are more murky. The sender is not a passenger, physically present and interacting with the driver.

It is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries or death, but it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law and will be distracted by the text. Like a call to voicemail or an answering machine, the sending of a text message by itself does not demand that the recipient take any action. The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction.

(Emphasis added)

Now plaintiffs are getting somewhere. The court issues the following rule:

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.

That’s an important thing for everyone in New Jersey to be aware of, and to our knowledge the first time a court has placed this strong of a duty on the sender of a text message in this kind of matter. Still, the “special reason to know” bar may yet be quite high: In case you were wondering, despite the ruling, the plaintiffs in this case were unsuccessful in their attempt to put Colonna on the hook. The court found insufficient evidence that the sender of the text knew that its recipient would be checking it while driving, so there was not held to be a breach of duty in this particular case.