Think Before You Text- You Could Be Found Guilty of Causing an Accident

Posted By: Tony Baratta | December 5th, 2013

Can a person sitting their living room be responsible for a motor vehicle accident?  Maybe, says a New Jersey court. In a previous blog posted January 9, 2013, I described how texting while driving is the new drunk driving.  In that blog, I explained how, like drunk driving, texting while driving distracts a driver to a greater extent than drunk driving.  Recently, the New Jersey Superior Court issued a decision in the case of Kubert v. Best  which should wake everyone up as to how seriously states, courts and legislatures are taking the use of cell phones while driving.

In the Kubert case, the Plaintiffs, Linda and David Kubert, were grievously injured by an 18 year old driver who was texting while driving and crossed the center line of the road.  The Plaintiffs sued not only the texting driver, but also the driver’s 17 year old friend who sent a text message to the driver immediately before the accident

New Jersey prohibits texting while driving.  If caught texting, an offender is subject to a fine of $100.00. The New Jersey legislature has enacted a law imposing criminal penalties for those who are distracted by the use of a cell phone while driving and who injure others as a result.  The new law explicitly permits a jury to infer that a driver who was using a handheld cell phone and caused injury in an accident may be guilty of an assault by auto, a fourth degree crime, exposing the driver to a potential sentence in state prison.

In Kubert, the Court was asked to determine whether a person who is texting someone while they are driving can be liable to persons injured because the driver was distracted by the text.  The court determined 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 court ultimately dismissed the case against the 17 years old texting non-driver because the Plaintiffs did not present evidence sufficient to prove that she had knowledge that her friend was in the course of driving when she texted him immediately before the accident.  However, the court concluded that a person sending text messages 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.

This is a significant cautionary ruling.  Each of us has a special duty to know when our friends and family may be driving.  This ruling potentially imposes a duty not only upon someone who is driving to not text while driving but also, if you are sitting in your living room watching T.V. and about to send a text, to think whether or not that person to whom you are sending a text may be in the course of driving.  If, for example, someone is late to an appointment or to a family gathering, this case is a cautionary tale to not text that person to find out why.  If your son or daughter is driving to school and you want to know if they arrived safely, it is best that you send the text well after the period that you would have expected them to arrive.

If you, a member of your family or someone special in your life has been harmed by the negligence of a distracted driver and you would like to discuss it with me please feel free to contact me at 215-914-2222 or

About the Author

Anthony J. Baratta (Tony) is a trial attorney. He has tried more than 50 cases to Juries in State and Federal Courts and has litigated thousands of personal injury and medical malpractice cases in his 30-year career. Tony is the founding partner of Baratta, Russell, & Baratta and an active board member of the Pennsylvania Brain Injury Association (BPIA). Tony is also on the board for the Philadelphia VIP and performs pro bono work for the Laurel House, a non-profit for victims of domestic abuse. In addition, Tony is a member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 14 years, and a 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

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