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“Electronically Present”: NJ Court Says Remote Texters Can Be Liable for Accidents

I've had friends and even state legislators call me while they are driving. That's part of why it's so hard to get the South Dakota Legislature to pass a texting/phoning-while driving ban: the majority of legislators are trying to catch up on business with every spare minute, including their long, lonely weekend stretches on the highway.

I've wondered if I might have an obligation to hang up on my friends and legislators when I hear the highway rushing in the background of the phone call, to tell them, "Call me back when you've stopped."

A ruling from the Superior Court of New Jersey suggests I might. Three New Jersey judges heard an appeal from David and Linda Kubert, who lost their left legs when 18-year-old Kyle Best crossed the center line while texting female friend Shannon Colonna and hit the Kuberts' motorcycle with his truck. The Kuberts sued and got a settlement from Best, but they also sued Colonna, saying that by texting Best while he was driving, she was "electronically present" and contributed to the accident.

The lower court dismissed the suit against Colonna, and the appellate division upheld the dismissal. But the court sets this standard, which the Kuberts didn't satisfy but which other plaintiffs could:

We hold 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 [Superior Court of New Jersey, Appellate Division, Kubert v. Best and Kolonna, Docket No. A-1128-12T4, 2013.08.27].

Interesting: our legal obligation to keep it down back there! may extend from the back seat to the couch at home.

Colonna got off because, the judges concluded, "Colonna did not have a special relationship with Best by which she could control his conduct. Nor is there evidence that she actively encouraged him to text her while he was driving." However,

When the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle. As we have stated, a passenger must avoid distracting the driver. The remote sender of a text who knows the recipient is then driving must do the same [Kubert v. Best and Kolonna, 2013.08.27].

This ruling underscores an important philosophical point about our evolving technology: legally, morally, attentively, we can be someplace other than where we are.

...texting someone can sometimes be the same as actually being with them. The implication of this point is a bit larger: The physical world doesn't exist separately from cyberspace; technology and life often overlap, sometimes with lethal consequences.

"I think the court is right to define 'presence' as not only rooted in physical space, but also by attention -- something digital communication can garner a substantial amount of, even over great distance," said Nathan Jurgenson, a digital theorist who has written about these issues [Matt Pearce, "New Jersey Court: Texting with a Driver Can Get You in Trouble, Too," Los Angeles Times, 2013.08.27].

Perhaps the justices and Jurgenson offer a digital-age reformulation of Home is where the heart is... an interesting point to make as I blog South Dakota from outside South Dakota.

But trust me: I won't be blogging from behind the wheel. And if you call or text with a tip, I won't respond until I'm done driving. After all, I wouldn't want to get you in trouble.


  1. Stan Gibilisco 2013.08.30

    I have never sent a text in my life, and after hearing this story, I doubt that I ever shall.

  2. El Rayo X 2013.08.30

    OK, say a journalist/blogger/Lady Gaga fan is in his car jamming to Mother Monster on the radio while returning from a huge misdemeanor trial and has a car accident. Is Lady Gaga liable for any injuries? Let's go a little further. Say he was eating a large DQ Blizzard and jamming to Lady Gaga. Is the local Dairy Queen store to blame too? Are back-up singers and dairy farmers part of the liability mix?

  3. caheidelberger Post author | 2013.08.30

    No, they are not, according to the standard laid out by the New Jersey court, not any more than if Bob texts driver Mary, not knowing that Mary is behind the wheel.

    ("Mother Monster"—ERX, you know these titles?)

    Stan, I find texting terribly inefficient. Just call!

  4. Douglas Wiken 2013.08.30

    Put this in BOLD type:
    "Stan, I find texting terribly inefficient. Just call!"

    Texting seems designed for deaf-mutes. It has something in common with computer installation and setup instuctions with only diminutive drawings and no English. I wonder how many computer buyers are completely illiterate.

  5. Douglas Wiken 2013.08.30

    The same legislators who might push an indirect liability against cellphone texters most likely won't support a dram shop act putting liability on thugs selling booze who dump drunks out on highways to kill innocents and themselves and now and then a sober legislator.

  6. caheidelberger Post author | 2013.08.31

    Good comparison, Doug! Texting and alcohol both impair and addict drivers. Should we punish those who contribute to that impairment and addiction?

  7. PNR 2013.09.03

    Where does it end? Billboards distract drivers - and they know the people they're distracting are driving. That's why they put the signs on the side of the road. The vast majority of radio shows assume a significant number of their listeners are in their cars.

    Do I, as the initiator of a text or phone call, force the recipient to answer or read it?

    I send text messages (and e-mails) precisely because they do not require an immediate response and the person receiving them can get to them at his or her leisure. I don't call my son at work, I text him and he can get to them on his break. If I know he is driving, I might not call because that would distract, but I will send a text he can read or respond to when it is safe. But now, according to this ruling, if my son chooses to answer my text immediately and in the process injures someone, I am liable.

    I think the one on the receiving end has a responsibility to think, "This would distract me. I will not answer the phone or read the text until it is safe to do so." The court made an assumption - that the sender assumed the receiver would feel obligated to read and respond immediately - that is not valid.

  8. caheidelberger Post author | 2013.09.05

    Well, PNR, we can restrict billboards that go too far in demanding attention (e.g., flashing LED displays).

    I agree wholeheartedly with your texting philosophy and apply it to email (and blog comments!) as well. The whole point of this tech is to allow us to communicate asynchronously, on our own schedule. That philosophy requires that we accord our correspondents the same courtesy of not expecting an immediate reply.

    Note that the court did not make the assumption that the sender knew the receiver would feel obliged to respond immediately. The New Jersey court said that the plaintiffs failed to prove any such knowledge and upheld the dismissal of the suit. The standard is there for anyone who distracts a driver, but I don't think anyone's liberty or personal responsibility is in peril, as the standard seems awfully hard to reach.

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