Written by Elyssa Shifren
Imagine yourself at 17 years old. You have been text messaging your crush all day. You know your crush is leaving work soon, and you send another text. Your crush stops responding. You immediately fear your crush lost interest in you. Later that evening, you discover the real reason for the unresponsiveness.
Your crush was in a serious accident, around the time of your last text. Your crush was barely harmed, but the couple whose motorcycle your crush’s truck hit, sustained severe injuries. You are in shock. You are well aware of the dangers of texting and driving. However, you never thought merely pushing “send” could make you responsible for someone’s texting and driving. But the injured couple alleges that, by sending your texts, you are legally liable.
This scenario is based on Kubert v. Best, the first and only case about liability of the remote sender of a text. In 2009, 18-year-old Kyle Best and 17-year-old Shannon Colonna texted throughout the day. Best left work to drive home. At the same time, Linda and David Kubert rode around on David’s motorcycle. At 5:49pm, Best’s truck collided with the Kuberts’ motorcycle. The Kuberts’ injuries were so severe that both lost their left legs.
The Kuberts sued Best in 2010, and added Colonna as a defendant in 2011. The New Jersey trial court granted Colonna’s motion for summary judgment on the grounds that the Kuberts failed to provide evidence of Colonna’s liability.
The Kuberts appealed, arguing that Colonna owed a duty of care under 2 alternate theories of liability: 1) Colonna owed a duty as a passenger, and by texting, Colonna and Best were acting in concert, and 2) more importantly, even if Colonna did not have a duty as a passenger, she had an independent duty not to text Best when she knew he was driving. The court rejected the first argument. For the second argument, the court used what the New Jersey Supreme Court called a “full duty analysis.” The court held that the Kuberts failed to prove Colonna’s liability. However, the court concluded that the sender of a text “has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.”
The Full Duty Analysis Considers the:
1. Relationship of the Parties
2. Nature of Inherent Risk of Harm
3. Opportunity/Ability to Exercise Care
4. Public Interest In the Outcome
The court was incorrect in determining that the remote sender of a text can be liable for resulting injuries in certain situations. Holding the remote sender of a text liable is not an appropriate solution to texting and driving. Rather, appropriate solutions involve changes in the laws on texting and driving, changes in technology, and most importantly, social change. If the full duty analysis is correctly applied, the remote sender of a text does not owe an independent duty.
The Full Duty Analysis:
1. Relationship of the Parties: Cases have held that for passenger liability, the passenger must have been “in a position to ‘know or have reason to know, from past experience, that there [was] a likelihood of conduct on the part of [a] third person[]’ that was ‘likely to endanger the safety’ of another.”
The court applied this rule to remote senders of texts. The court concluded that for the sender to be independently liable for distracting the driver, the sender must be in such a relationship with the driver that the sender knew/had reason to know that the driver would text and drive. The court determined that the Kuberts failed to prove Colonna knew Best would immediately read and respond to her text.
–77% of young adults think they can text and drive safely.
–55% of young adults think it is easy to text and drive.
…BUT, young adults who text and drive tend to drive outside of their lane for 10% of their time driving. statistics
However, the court’s standard for liability may lead to arbitrary and inconsistent application. The facts of Kubert appeared to fall perfectly within the parameters of the standard created by the court, because Colonna knew Best was responding to her texts and was leaving work at the time, yet the court declined to find Colonna liable. With such unclear guidance courts are not likely to know how or when to use the standard,
which will render it useless.
2. Nature of the Inherent Risk of Harm: This consideration is determined by the foreseeability of the risk of harm. The court said that the sender should be liable because the risk of an accident is severe and foreseeable to the sender. However, the court failed to consider the view of many people who text, the flawed view that people can be “good” at texting while driving. To these people, getting into an accident is less foreseeable.
–188 billion texts were sent monthly in the U.S. in 2010
–88 texts per day is the average amount of texts received by Americans age 18-29 statistics
3. The Opportunity and Ability to Exercise Care: The court determined that the sender has the opportunity and ability to exercise care by simply not sending the text. However, due to the nature of sending a text, the remote sender of a text will never have sufficient opportunity and ability to exercise care in a way that would permit any liability to be placed upon the sender. Unlike in other cases where courts found liability for failure to exercise care, the remote sender of at text cannot control what happens once the text is sent. There is nothing for the sender to do other than hope the driver is responsible enough to read the text when it is safe. The court’s suggestion that people should merely refrain from texting, in light of the frequency with which we text today, is highly unrealistic.
-23%: the amount of car accidents that involved cell phones in 2011.
-23 times more likely to crash if you are texting while driving. statistics
4. Public Interest in the Outcome: The court viewed the public interest mainly in terms of deterrence of texting while driving. However, Kubert was not just about texting and driving, it was about sending texts to drivers. Thus, if people know they could be liable for texting a driver, it can create a chilling effect, making people afraid to send texts. Additionally, imposing liability on senders diverts the attention of courts and the public from the real issue at hand: the dangers of texting and driving. The court and the legislature should address the issue of texting and driving head-on by targeting the driver, who will actually be texting while driving, rather than the sender of the text.
3 Part Framework:
1. Changes in the law
2. Changes in technology
3. Changes in society
The Solution: Although Kubert focused on the liability of the remote sender, the underlying concern is a driver texting while driving.
With the proper concern in mind, Julius Genachowski, chairman of the Federal Communications Commission, laid out a three-part framework to effectuate a change in texting and driving in his informational article.
First, the law should be amended to increase bans on texting while driving. Because almost all states have laws that ban text messaging while driving, other types of solutions are needed to address this serious issue.
Second, technology must change, as “a problem born from technology requires technological solutions.” Makers of cell phones have made innovations, such as apps for cell phones that block the ability to text while driving. However, people must want to use these technologies in order for them to be truly effective.
This is where the third, and most important, change enters. There must be social change to make any other change effective. As society has seen with drunk driving, social education and condemnation of a destructive habit can pressure people to no longer engage in it. The government has established a distracted driving website with suggestions and materials to deter people from texting and driving. Social change must also occur at an individual level. Even small things, such as visiting the government website and taking the pledge not to use your phone while driving, can effectuate change.
Conclusion: The NJ state court erred in stating that the remote sender of a text could be liable for any accident that results. Potentially imposing liability on the remote sender of a text is a round-about way of resolving the issue of texting and driving. The only way to effectively resolve the issue of texting and driving is through a head on approach, such as further laws, technological advances, and increased public awareness. Given the number of potential solutions, there is no reason to hold the remote sender of a text liable.