What did we do before texting was invented? Although some people believe that it is quaint and outdated, we actually spoke to each other. Sometimes we talked by telephone or in person. Now, texting is a preferred method of communication with its own grammar, spelling and acronyms.
Like any new techology, texting has a dark side. At its worst, it can distract drivers from the hazards of the road, sometime with fatal consequences. We know that a "texting driver" may have both criminal and civil liability if an accident ensues but what about someone who texts a driver who then causes a serious accident? Can the third party who sent the driver a text be liable as well?
In <a href="http://pdf.wcmlaw.com/pdf/kubert.pdf"><em>Kubert v. Best</em></a>, Kyle Best, age 18, was driving his pick-up up truck when he apparently received a text message from his 17 year old friend. Momentarily distracted by the text, he crossed the double yellow line and struck a couple riding a motorcycle, causing them both serious personal inuries. The couple sued Kyle as well as the friend who sent him the text. The lower court ruled that the texting friend had no duty to refrain from sending the text and the plaintiffs' appealed.
The Appellate Division affirmed the dismissal of plaintiffs' complaint but held that a person may be liable for sending a text message to the driver of a motor vehicle only if he knows or has reason to know that the recipient will read the text while driving. In this case, plaintiffs' proof fell short of the mark so the dismissal was affirmed. But the door is now wide open to impose liability for an accident on a person not physically present in the motor vehicle if the sender of a text is aware that the receipent may receive and review the text while driving.
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