A New Jersey Appellate Court in an August 27, 2013 opinion,  provided a glimpse into the future where the sender of a text message, who is not driving, could be liable for an automobile accident caused by the recipient of the text message.

In the case of Kubert v. Best, et. al., Docket No. A-1128-12T4, Superior Court of New Jersey Appellate Division (August 27, 2013), David and Linda Kubert each lost a leg after a driver who was texting crossed the center line and hit them on their motorcycle. The Kuberts appealed the New Jersey Trial Court’s dismissal of their claim against the defendant driver’s friend, who was not with the defendant driver at the time of the accident, but sent the defendant driver a text message immediately before the accident and distracted the driver. The New Jersey Appellate Division held that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”

The Plaintiffs-Appeallants case did not survive summary judgment because (despite both defendants sending numerous text messages to each other throughout the day of the collision) there was insufficient evidence direct or circumstantial that the Sender of the text knew the Recipient was driving when the Sender sent the text message and would read the text message while driving and thus violate New Jersey’s law that prohibits using cell phones not hands free while driving.

The Plaintiff-Appellants argued that the Sender of the text message “aided and abetted” the Recipient’s violation of New Jersey law when the Recipient used his cell phone while driving. Similar arguments are made in cases involving drunk drivers who cause injuries when someone else knew the driver had been drinking and allowed the person to drive drunk.

In this case the Sender of the text message did not have a “special relationship” with the Recipient by which she could control the Recipient’s conduct (e.g. employer-employee or parent-child relationship). Also, the court held that merely sending a text message alone was not enough encouragement for the recipient to read the text message and respond immediately while driving thus violating New Jersey law. There would need to be evidence that the Sender urged the Recipient to read and respond to her text while driving, and in this case, there was none. Thus, the evidence presented by the Plaintiff-Appellants was not enough to create an issue of material fact in order to survive summary judgment.

Despite the Plaintiff-Appellants’ loss, New Jersey’s Appellate Court appears to have laid down the first test of its kind, whereby given the right evidence, a third party who sends a text message to a driver could be held liable if the driver causes an automobile accident because of they received a text message.