EMPLOYMENT LAW: A New Form of Liability for Electronic Communications Is Speeding Towards You


Can the sender of an electronic communication be liable to persons injured in a motor vehicle accident caused by the recipient of that communication? Two courts now say yes. And while all Californians should take note, California’s employers should be especially concerned.

A New Jersey Court Ignites Liability

In what was believed to be the first case in the nation to confront the question, a New Jersey Appellate Court 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, 75 A.3d 1214 (N.J. Ct. App. Aug. 27, 2013).]

The case involved an auto accident where the driver of a pick-up truck drifted across the center line dividing oncoming traffic and collided with a motorcycle, which was being ridden by the plaintiffs, husband and wife. The collision shattered the wife’s leg and nearly severed the husband’s leg, requiring amputation of both of their left legs.

Espousing a novel theory, the plaintiffs’ attorneys sued not only the driver of the truck, an 18-year-old male, but his 17-year-old female companion, with whom he had been texting immediately prior to the time of the accident. While the case against the male settled, the female 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, however, disagreed, 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. For example, a passenger’s liability would be direct and clear if he had obstructed the driver’s view of the road by placing a paper (or mobile phone) in front of the driver and asking the driver to look at it. 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 it was not unfair to impose such a duty of care on the sender of a text, because the burden is relatively minimal. “It is … easy for the sender of a text message to avoid texting to a driver who the sender knows will immediately view the text and thus be distracted from driving safely. 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.)

In summarization, the court explained, “we do not hold that someone who texts a person driving is liable for that person’s negligent actions; the driver bears the responsibility for obeying the law and maintaining safe control of the vehicle. We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time.” (Opinion at 29.)

A Pennsylvania Court Follows Kubert’s Lead

In 2016, a Pennsylvania court in the case of Gallatin v. Gargiulo (Lawrence County, PA, No. 10401 of 2015, C.A.) followed Kubert’s lead and refused to dismiss claims of negligence against two individuals for texting with a driver who caused an accident. The Gallatin case involved a Pennsylvania woman, who—while allegedly distracted by reading and responding to text messages on her phone—struck and killed a motorcyclist. The estate of the motorcyclist brought a civil suit against the driver of the vehicle, as well as the two persons with whom the driver was believed to be texting.

One of the “sender defendants” argued that the case against him should be dismissed given that there is no statue or case law that imposes a duty of liability for a person who merely sends a text message. Noting that no Pennsylvania court had addressed the duties or liability of the sender of a text message to a person operating a motor vehicle, the court looked to Kubert and the general legal concept that a third party can be liable if she encourages another in violating a duty, and concluded that the allegations made by the plaintiff were sufficient for the case to proceed.

While the case has not yet gone to trial, the court effectively ruled that the holding in Kubert—that the sender of a text message can be liable for sending a text message while the recipient is operating a motor vehicle if the sender knew or had reason to know the recipient was driving—would likely be the standard applied to evaluate to claims against the defendants.

What Is The Takeaway From These Rulings?

As an initial matter, there is no reason to believe that the Kubert opinion would be limited to text messaging, but would unquestionably extend to emails or other direct, reasonably instant communications. Many in the plaintiffs’ bar have expressed excitement about the court’s ruling, and it won’t be long before such claims are argued before courts all across the country. Of course, while there are still many questions that arise from the Kubert ruling, here in California, which is known to lean in favor of plaintiffs, it would not be entirely surprising to see this theory of liability gain traction.

This should be particularly concerning for California’s already weary 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 potential liability. In today’s electronic age, employers regularly communicate with their employees through various forms of technology, including text and electronic messages that are delivered directly to employees’ phones—wherever they are and whatever they are doing. 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 results from the employee having been distracted. And it should go without saying, but the plaintiffs’ bar will be more than happy to dig into the deep pockets of an employer whenever possible.

Employers should take note and ensure that they have a thorough employee handbook that addresses the various issues arising from technology, including a strict policy that prohibits texting or emailing while driving.

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