Tuesday, September 3, 2013

NJ Case Opens Door (in NJ) For Liability of Text Message Sender in Distracted Driver Auto Accident Cases



Previous cases on cell phone use here in Pennsylvania have focused on the liability of a defendant driver allegedly causing an accident by being distracted from the road ahead by some form of cell phone use (dialing, answering, talking, texting, etc.).

Now comes a New Jersey Appellate Division decision in the case of Kubert v. Best, No. A-1128-12T4 in which the court held that the sender of a text message may be held liable in New Jersey for injuries caused by the distracted driving of the text recipient if the plaintiff can prove that the sender of the text knew or had special reason to know that the recipient would view the text while driving and would be distracted by it.

I usually try to remain objective and keep my opinions out of Tort Talk posts as being irrelevant but I can't resist here.

Justice Benjamin N. Cardozo
In Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), Justice Cardozo defined the concept of proximate causation by stating "the risk reasonably perceived defines the duty to be obeyed and risks imports relation;  it is to another or others within the range of apprehension." 

This Kubert opinion out of New Jersey appears to stretch Justice Cardozo's concept of foreseeability from the Palsgraf decision that we all learned in law school to unrecognizable bounds.

What's next--the ability to sue the telecommunications company for allowing us to all the ability to send text messages?  

Eddie Van Halen
How about allowing an injured plaintiff to sue Van Halen because the band knew or should have known that a defendant driver would take his hands off the wheel to play air guitar while blasting "Panama"? (Click on the word "Panama" to "witness the vid" and take a trip back to the 80's).

Why not then the ability to sue a gas station or a major gas company for selling gas to a defendant driver because the owners of the gas station or gas company knew or should have known that the driver could some day be in a car accident?

More realistically, will the slippery slope someday be extended to allow an injured plaintiff's to sue a passenger in a defendant driver's car because the defendant driver looked over at a passenger while the passenger was talking and, as a result, rear-ended the car ahead?

The above examples are a bit extreme, but where can the line be drawn in a concrete and workable fashion after decisions like this?

(Now you see why I keep my opinions out of it....where else could you find a reference to Justice Cardozo and Van Halen in the same context?)

Anyone wishing to review the decision of the New Jersey Appellate Division in the case of Kubert v. Best may click this LINK.


I send thanks to Paul Oven, Esq. of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

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