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Abstract

Texting and driving is a dangerous activity that is responsible for many of the avoidable accidents that occur due to distracted driving. While many state legislatures have responded by enacting formal prohibitions on texting and driving, the penalties are far less severe than other forms of distracted driving, namely driving while intoxicated. While a texting driver is exposed to some liability for their conduct, the text sender generally bears no responsibility. While prohibiting texting and driving on the part of the recipient-driver is the more obvious approach to addressing the issue, the very nature of texting requires the participation of two individuals, which suggests that the text sender’s conduct should also be addressed.

In Kubert v. Best, the Superior Court of New Jersey properly extended potential liability not merely to the driver who causes an accident due to texting and driving, but also to the sender of the text. Kubert’s holding represents a departure from traditional notions of third-party tort liability and imposes a new duty on remote senders of text messages. While the Superior Court concluded that the evidence presented by the Kuberts was insufficient to hold the remote text sender liable, it held 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 become distracted.” Because the threshold of proving that a remote text sender has breached his duty is higher than ordinary standards of conduct, Kubert’s holding offers a realistic approach to reducing incidences of texting while driving. It also forces society to re-examine how drivers should use electronic devices when operating an automobile.

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