On Tuesday, a state appeals court in New Jersey ruled that texters can be held civilly responsible if they "knew or had special reason to know that the recipient would view the text while driving and thus be distracted." The Appellate Division of the Superior Court emphasized that the primary obligation to avoid reading or writing text messages while driving belongs to the driver, but it also created a "duty of care" obligation on those who knowingly send text messages to drivers.


Violating a "duty of care" obligation is the first step in demonstrating actionable negligence, which means that texters open themselves up to civil ligation.

The case that prompted the court's decision was brought by Linda and David Kubert, who on September 21, 2009 lost their legs after being struck by Kyle Best, a teenager who had been distracted while driving. The pair had settled a lawsuit against Best, but then sued Shannon Colonna, who had the sent the text that distracted Best. According to the court, "the texter has a duty to users of the public roads to refrain from sending the driver a text at that time."

Although in this particular case, the court found that Colonna had no "special reason" to know that Best had been driving, the manner in which it addressed the issue opened the door to many future lawsuits. If the plaintiff could demonstrate that the texter had "special knowledge" that the recipient would be driving, they could be found legally negligent and therefore liable for damage done by the driver.

"The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle," the court wrote. "However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction."

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