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If You're Thinking About Texting a Driver

Posted 4 years 22 days ago ago by hesterd@ksbrlaw.com

A seemingly benign text conversation can have severe consequences…

Louisiana drivers are expected to drive in a careful and attentive manner.  Failure to do so renders the driver liable if he or she consequently causes an accident.  To help prevent distracted driving, Louisiana passed a law that prohibits a person from writing, sending, or reading a text-based message while driving a motor vehicle.  La. R.S. § 32:300.5.  A New Jersey court recently took this policy a step further.

New Jersey has a statute similar to the one in Louisiana that prohibits texting while driving.  But in New Jersey, the non-driver 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.”  Kubert v. Best, 2013 WL 4512313 (N.J. Super. Ct. App. Div. Aug. 27, 2013).  So not only can you, the driver, be liable for the accident, so can your friend who was texting you at the time of the accident.

In the Kubert case, the boyfriend (driver) and girlfriend (non-driver in a remote location) exchanged text messages mere seconds before the boyfriend’s truck crossed the center line of the highway and collided with a motorcycle.  One theory in Kubert was that the girlfriend aided and abetted the boyfriend’s unlawful use of his cell phone.  Plaintiffs also argued that the girlfriend had an independent duty not to send texts to a person who she knew was driving.

In case you were thinking “yikes, I can never send a text message again,” slow down.  It is not enough to send a text message to a person who happens to be driving.  The driver bears the primary responsibility of following the law and avoiding distractions.  To potentially be liable, the sender of the text message must not only know the recipient is driving, the sender must also know or have reason to know that the recipient will view the text while driving.

The Kubert court ultimately found the girlfriend not liable.  But consider the following set of facts:
Boyfriend texts girlfriend saying he just left school and has to drive to his house ASAP to get his practice gear; no stops along the way.  Girlfriend knows boyfriend’s school is 20 minutes from his house.  Boyfriend and girlfriend continuously exchange text messages for the next 10 minutes, until boyfriend rear-ends the vehicle in front of him.  At the time of the collision, not only did girlfriend know boyfriend was driving, girlfriend had reason to know that boyfriend would immediately read her text message, based on the fact that boyfriend had been reading and responding throughout the 10 minutes before the wreck.

The important question is: what implications does Kubert have for Louisiana texters?  By comparison, the Louisiana Supreme Court mentioned in Adams v. Sec. Ins. Co. of Hartford, 543 So. 2d 480 (La. 1989) that a negligent act by a passenger of a vehicle could subject the passenger to liability if the negligent act caused the driver to wreck the vehicle.  Texting a friend who you know is driving and who you know will read the text immediately, causing the friend to be distracted, is arguably negligent.  On the other hand, a Louisiana court may liken the situation to that of a server of alcohol.  A server or furnisher of alcohol is not liable to persons for injuries suffered off of the premises because of the intoxication of the person to whom the alcohol was served or furnished, unless the server/furnisher uses force or falsely claims the beverage is alcohol-free.  La. R.S. § 9:2800.1.  Along that reasoning, unless you somehow “force” the driving friend to read the text, you the sender would not be liable.

Either way, given the prevalence of texting while driving, a case similar to Kubert will probably show up in Louisiana before long.






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