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Update: Legislator Moves to Curb Texting Liability

Posted by Matt Rooney | Sep 05, 2013 | 0 Comments

Monmouth County Assemblywoman to Introduce New Legislation in Aftermath of Controversial Texting Ruling from New Jersey Appellate Court

One of this week's most widely-discussed news stories — both in New Jersey and nationwide — originated from a New Jersey Appellate Court. You'll recall that two members of a three-judge panel ruled 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.” The third party texter in the that particular personal injury civil claim, Kubert vs. Best, was not ultimately held liable. However, many observers believe the Court's ruling could open the door to future civil claims against third party texters. You can click here to read the full decision. As our firm's own attorney Rick DeMichele, Jr. explained on KYW Radio this week, the fundamental legal principle of “notice” is key to the Kubert vs. Best analysis. Proving negligence for any personal injury civil case involves a demonstration that the defendant (1) had a duty, (2) breached the duty, (3) that said breach was the proximate cause of any damages, and (4) damages themselves. A common defense to any personal injury claim offered by defendants is that they did not have notice, either constructive, implied or actual, of the dangerous condition at issue which would have necessarily given rise to a duty on their part. It's unclear which type of text could give rise to liability if the Kubert vs. Best holds up. For example, if you were to text a friend from the driver's seat of your car stating “I'm on my way to you,” and your friend responds by continuing to send you text messages, does your initial text provide your friend with sufficient notice such that you would be held liable for a resulting accident en route to his or her house? Again, this is the critical point, one which attorneys will undoubtedly litigate pending further guidance from the courts. Advocates of strict penalties for texting are facing a push-back from those who feel the Kubert panel went a step too far. On Wednesday, Assemblywoman Caroline Casagrande of Monmouth County announced that she will introduce legislation in the New Jersey General Assembly which, if passed by the legislature and signed by Governor Chris Christie, would bar a future claim against a 3rd party texter on facts similar to those in Kubert vs. Best. In a statement released by her legislative office, Asw. Casagrande expressed her opinion that “[t]t is a sad state of affairs when a court believes that someone sending a text message can be held accountable if they have a ‘special' reason to know the recipient will be driving a vehicle and then read the message. This legislation puts the responsibility where it belongs – in the front seat with the driver – not with the sender who can be held culpable for something beyond their control.” “There is no denying that texting while driving is dangerous. However, the sender of a text is not omniscient and cannot predict what the recipient will be doing when they decide to read the message,” Casagrande continued. “It is illogical to expect that a text sender can reasonably determine if the recipient is both driving and will read the text immediately. That is an impractical standard. Apparently, protections have to be in place from liability for a person merely sending an electronic communication. You have to wonder when the insanity is going to stop.” Recovering after a traumatic accident is always challenging; as this latest texting case demonstrates, establishing your right to recovery from those responsible is rarely completely straightforward. If you have questions regarding your injury or the injury suffered by a loved one, please contact us without delay.  The personal injury attorneys at DeMichele & DeMichele will thoroughly evaluate the potential claim, explain the litigation process in-depth, and vigorously labor to compile the physical and medical evidence necessary to meet New Jersey's verbal threshold standard and establish a successful personal injury case. To arrange a free personal injury consultation with DeMichele & DeMichele, please click here to contact us online today or call (856) 546-1350 to speak with one of our personal injury attorneys.

About the Author

Matt Rooney

Practice Areas: Family Law (including Divorce, Alimony, Child Support, and Domestic Violence); Municipal Court; Personal Injury; Residential Real Estate; Civil Litigation; Collections.

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