A NEW FORM OF LIABILITY FOR ELECTRONIC COMMUNICATIONS?

Can the sender of an electronic communication be liable to persons injured in a motor vehicle accident caused by the recipient of that communication? One court says yes. And employers should take note.

In what is believed to be the first case in the nation to confront the question, a New Jersey Appellate Court recently held that, under certain conditions, a person who sends a text message may be held personally liable for a motor vehicle accident caused by the recipient of that message. [Kubert v. Best, (N.J. Ct. App. Aug. 27, 2013) No. A-1128-12T4.]

The case involved an auto accident where the driver, who was texting, drifted across the center line dividing oncoming traffic and collided with a motorcycle. Espousing a novel theory, the plaintiffs' attorneys sued not only the driver but his friend, with whom he had been texting immediately prior to the time of the accident. While the case against the driver settled, the friend moved the court for summary judgment in her favor, arguing that she did not have a legal duty to the plaintiffs and, therefore, could not be found liable to them for any purportedly negligent actions. The trial court agreed, and plaintiffs appealed the decision.

The appellate court disagreed with the trial court, concluding that "a person sending text messages has a duty not to text someone who is driving if the texter knows, or has a special reason to know, the recipient will view the text while driving." (Opinion at 11.)

The court examined the question by analogizing the issue to the situation in which a passenger knowingly distracts a driver. In such situations, case law confirms that a passenger in a motor vehicle has a duty not to interfere with the driver's operations and can be held liable for such interference. Given this, the court went a step further, concluding that the passenger could also be liable for indirect distraction by urging the driver to take his eyes off of the road to observe a distracting object, "but only if the passenger's conduct is unreasonably risky because the passenger knows, or has special reason to know, that the driver will in fact be distracted and drive negligently as a result of the passenger's actions." (Opinion at 24.) The limiting factor, then, is the foreseeability of the risk.

Examining foreseeability, the court held that the "sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction." (Opinion at 25.) The court further determined that when the defendant's actions are 'relatively easily corrected' and the harm sought to be prevented is serious, it is fair to impose a duty." (Opinion at 27.)

It seems likely that the Kubert decision will extend to other forms of the other forms of instant communication we engage in on our mobile telephones, such as emails. Especially as the plaintiffs' bar has expressed excitement about the court's ruling.

This should be a particular concern for employers. While employers have long faced vicarious liability for accidents that occur when an employee is acting within "the course and scope of employment," this case could signal a significant expansion of liability for an employer. In today's electronic age, employers regularly communicate with their employees through various forms of technology, including text and electronic messages. Thus, for example, the email sent to an employee, who the employer knows to be driving home at the end of the day, could expose the employer to liability for any accident that may result.

As such, employers should take note and ensure that they have express, well-defined policies in place that prohibit any and all texting or emailing while driving. Additionally, employers should also enact a policy that advised employees (at least those who are non-exempt) that any business related emails or text should only be handled during "on-the-clock" time." Although neither policy will completely shield a business-owner from exposure, it is one step toward preventing a liability-inducing incident. As always, employers should consult with competent legal counsel in drafting workplace policies.