Not since the McDonald’s hot coffee case has a civil case involving tort liability captured the interest of both the public and the bar as has the recent August 2013 New Jersey appellate decision in Kubert v. Best.1 Numerous cases have previously dealt with the issue of civil liability for those who text while driving. Kubert goes one step further and addresses the potential liability for the person who is texting the driver, thereby distracting the operator of the vehicle. The findings by the court, sparking the debate, detail those circumstances where legal liability may be found against someone who texts a driver. Should the person sending the text know that the recipient is driving, and further know, or have reason to believe, that the recipient will read the text while driving, the sender of the text may be liable to those who are injured, should the driver become distracted by the text and cause an accident.

Although the court granted summary judgment in favor of the texter on the basis that there was insufficient evidence that this particular sender was aware that the driver of the vehicle would read the text while driving, the road map has been established for future cases where liability may be found. This is particularly true in instances where multiple texts are sent and other evidence shows that the sender of the text knew the recipient would read the messages while driving.

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