Motor Vehicle Safety: Dangers of Texting While Driving & The Legal Responsibility for Distracted Driving

We learn more every day about the dangers of texting while driving. A recent decision in New Jersey may signal a new era of expanding legal responsibility, not merely for the driver, but for those outside the car sending the texts.

According to the New Jersey decision, in September 2009, teenager Kyle Best was driving down a country road in New Jersey while texting back and forth with a female friend, Shannon Colonna. His pickup truck drifted across the highway and struck David and Linda Kubert in the oncoming lane of traffic. The Kuberts, riding on a motorcycle, suffered devastating injuries, each losing a leg in the collision. David Kubert saw it coming. “What I saw was a gentleman in the truck steering with his elbows, with his head down. And I could tell he was text messaging,” David said.[1]

The Kuberts sued Best, but sued Colonna as well, theorizing that she was “electronically present” at the scene.[2] New Jersey law prohibits texting while driving by banning the use of any wireless telephone device except when used in a hands-free manner.[3] By continuing to text Best, the Kuberts alleged, Colonna “aided and abetted” Best’s unlawful use of the cell phone while driving. They also argued that Colonna had a duty to avoid texting to someone who she knew was in the acting of driving. Her texts created such a distracted driving situation for Best that she should also be responsible for their injuries. The Kuberts lost the case against Colonna in the trial court, but filed an appeal.

The Superior Court of New Jersey, Appellate Division, held that such a duty existed if a sender of text messages had reason to know that the recipient of the text was engaged in the act of driving at the time and that the sender further knew that the recipient of the text would read the message while driving. The Court specifically noted that the act of sending text messages, without more, is not “active encouragement that the recipient read the text and respond immediately”[4]

The Kuberts lost the appeal because the Court found that Colonna had no reason to know that Best was driving at the time she sent the texts. As with many people, especially teenagers, she sent dozens of texts each day, oblivious to what the recipient was doing. Since she had no reason to know that Best was in the act of driving when she engaged in the repetitive texting, much less whether he would engage in the illegal activity of reading and/or responding to those texts while he was driving, she owed no duty to refrain from the texting.

Could such a ruling happen in Virginia? Our Supreme Court has declined to hold that a bar owner who continues to serve an intoxicated patron has any responsibility for any accidents caused by the patron, under the theory that it is the drinking of the alcohol, not the furnishing of the alcohol, that has caused any ensuing accident.[5] The Court noted a trend across the country toward allowing such “dram shop” claims against bars and restaurants, but stated that “we believe that a decision whether to abrogate such a fundamental rule as the one under consideration is the function of the legislative, not judicial, branch of government.”[6] Following the logic of the dram shop cases, it seems unlikely, absent action from the General Assembly, that our courts would hold the non-driving texter responsible for the actions of a vehicle operator who chooses to read or respond to a text while driving, even if they knew the person was operating a vehicle while reading a text or texting a reply. However, as more and more states pass laws mandating only hands-free cell phone use and banning texting while driving, we could see a trend towards enacting legislation holding non-driving texters culpable for the reckless driving behavior of the recipients of those texts

About the Author: Tammy Ruble is a long time Chesterfield resident and an attorney with personal injury law firm of Allen, Allen, Allen & Allen. She serves as a resource on issues in her special fields of expertise which include the crafting of Complaints and documents relating to infant settlements, wrongful death settlements, due diligence, and discovery.

[1] See article, “Suing the sender? Distracted driving lawsuit blames both texters for crash,” at (May 23, 2012).

[2] See the New Jersey Supreme Court’s opinion in the case Kubert and Kubert v. Best, et. al., at, at page 5.

[4] See New Jersey Supreme Court’s opinion in the case Kubert and Kubert v. Best, et. al., at, at page 18.

[5] See Virginia Supreme Court case Williamson v. The Old Brogue, Inc., 232 Va. 350, 350 S.E.2d 621 (1986).

[6] See Virginia Supreme Court case Williamson v. The Old Brogue, Inc., 232 Va. 350, at 354, 350 S.E.2d 621, at 624 (1986).