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If You Needed Another Reason Not to Text and Drive, Here it is…

September 12, 2013

By John “J.P.” McCormick, Summer Associate
Carluccio, Leone, Dimon, Doyle & Sacks, LLC

The New Jersey Courts and Legislature are starting to crack down even more on texting while driving – but it is no longer just limited to the driver. While the legislature increases the penalties for texting while driving, the Courts are extending liability to not just the driver, but in some situations the person texting the driver.

On July 18, 2013, Governor Chris Christie signed the unanimously passed Kulesh, Kubert and Bolis’ Law. This new law creates an inference that illegal use of a cellphone constitutes reckless driving. A first offense under this new law, which includes texting while driving, is a fine of $200, and up to $600 and a 90-day license suspension for a third offense. This law is named for the victims of texting-while-driving accidents: David and Linda Kubert lost their legs, while Helen Kulesh and Toni Bolis (who was nine months pregnant), lost their lives. The New Jersey Courts are also doing their part to help deter texting while driving.

The New Jersey Appellate Division approved for publication on August 27, 2013, Kubert v. Best. In this case, David and Linda Kubert were riding David’s motorcycle when they were struck by 18-year-old Kyle Best’s pick-up truck which crossed into their lane when going around a bend in the road. A review of Best’s phone records revealed that he called 9-1-1 seventeen (17) seconds after he had sent Shannon Colonna, a friend of his, a text, and it was inferred that his text was in response to one he had received twenty-five (25) seconds before he called 9-1-1. As a result of the accident, both of the Kuberts lost their left legs.

The Appellate Court held that a person who sends a text to a driver from a remote location may be liable under the common law if the driver is so distracted by the text that they get into a car accident; but liability attaches only if the remote texter knew or had special reason to know that the recipient would read the text while driving. It is not enough to know that the other person was driving, but must have known or had special reason to know that they driver would read the text. Although the court did not find that Colonna knew Best had been driving, this is a significant decision for expanding liability as a result of texting while driving.

Do you think the courts are going too far in expanding liability? Does someone texting a driver actually exert enough control over the driver, even knowing they might look at it, to assume some level of liability? Let us know what you think @CLDDS.

J.P. McCormick is in his third year at the University of New Hampshire School of Law, where he is an Executive Editor for the University of New Hampshire Law Review. Upon finishing his third year of law school, J.P. intends to practice in New Jersey, and is interested in all aspects of civil law. You can follow him on Twitter @JP_McCormick.

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