It is well known that New Jersey has banned the general use of cell phones while driving (N.J.S.A. 39:4-97.3). This includes texting, talking and even web surfing on your mobile phone. While the law allows the use of a cell phone under limited circumstances, the law is clear that cell phone use is no longer tolerated in this state.

A recent case has put further limits on the use of cell phones even if the person isn’t driving at all. In Kubert v. Best, it was held that the sender of a text message can be liable for injuries if a driving accident was caused because the driver of the automobile was distracted by the texting, but only if the sender knew or had special reason to know that the driver-recipient would read the text while driving and thus be distracted.

In this case, David Kubert and his wife, Linda, both lost their left legs as a result of being hit by a pick-up truck driven by Kyle Best (18 years old), who crossed the double center line of the road and traveled into the Kuberts’ lane. Best called 9-1-1 15 seconds after 5:49 p.m., which was 17 seconds after Best sent a text to Shannon Colonna, a girl he had been texting all day. It was inferred that this text to her was in response to a text he received from Colonna 25 seconds earlier.

After settling their claims against Best, the Kuberts brought suit against Colonna, arguing that she is liable to them if her text to Best was a proximate cause of the accident. Colonna was not held liable, as the evidence was insufficient against her.

It is not enough to establish that the text sender sent the message to a specific person, even if the sender knew the recipient was then driving. It was concluded that proof of liability is sufficient where the text sender knew the text recipient was then driving, that the text sender knew or had special reason to know that the driver would read the text message while driving, and would thus be distracted from attending to the road and the operation of the vehicle. A text sender can safely assume that the driver-recipient will view and read the text message when it is safe to do so. However, if the text sender knows that the driver-recipient will view and read the text message immediately upon receipt, then the text sender has distracted the driver and can be fairly held liable for the results.

The way to avoid a result like this is easy: DO NOT SEND TEXT MESSAGES TO PEOPLE YOU KNOW ARE CURRENTLY DRIVING. Otherwise, a text sent to a driver can make you just as liable for causing an accident as the one behind the wheel.