white black legal international law journal ISSN: 2581-8503

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Authored By - Akanksha



A bold decision was made by the Superior Court of New Jersey on August, 2013 in an attempt to combat all the harms which was presented by texting while driving. To restrict from sending messages to anyone who is driving is best articulated in the case of Kubert v. Best, and if the texter knows that the person is driving or even has some special reason to be known, that the one who receives this will view the text while driving. This as a result it has now become a serious problem in United States. The legislatures gave a response of the drink driving epidemic in the year 1980. In keeping with the trend, the court’s decision in the case of Kubert v. Best mentioned the fact. This particular note emphasises on the fact that the liability should not be there on the third party texter. Therefore, this note concludes with the point that if the duty of third party expands then it will be quite difficult to prove, rest of the states should not follow the same for creating this particular basis for the civil liability.


KEYWORDS: - Superior Court; Texting while Driving; Drivers; Third-Party Liability; Duties



In the year 2009, one couple named David and Linda Kubert were seriously injured when an eighteen-year-old boy named Kyle Best hit the motorcycle when they were riding. Into the Kubert’s lane Best’ vehicle was crossed. As a result, Kubert’s were seriously injured. Both of them lost their left legs because of the accident.


It was revealed that just before the accident Best and his friend named Colonna, did exchanged the messages when Best was driving way back to his home. At that particular time when the accident occurred before that itself, New Jersey had already passed a law not to text messages while driving except in the emergency situations.



When Best was sued then at that moment Best also sued Colonna stating that it was her duty to avoid texting messages to that person who’s driving. Because of her electronic presence with Best constituted the abetting and aiding Best used his phone illegally while driving. The Court mentioned the new duty in the part of Colonna.


It was mentioned that it is a duty of the third party to not to text messages if it is not the case of any emergency. However, Court then mentioned that the Plaintiff have not presented the sufficient number of evidences which can prove that Colonna did knew it earlier that Best was driving.


Therefore, the Court did grant the verdict in Colonna’s favour. Majority of them mentioned about the fact that Colonna might not knew that Best was driving and thus it was Best’s fault in violating the law. Therefore, at first it is the responsibility of the driver to not to violate any law and then even the third party do hold the duty to not to text any messages to one who is driving if there is no emergency situation.



In the United States, text messaging has become a very common method of the communication. Approx 173 billion of text messages as of June, 2010 were sent per month whereas only 12.2 million messages were sent per month in June, 2000. It is a known fact that texting is useful form of communication but from the research it was known that for a driver it takes the eyes off for about 4.6 seconds from the driving which means he drives for about fifty-five miles per hour which is approx the length of one football ground without having a look on the road.


The research regarding the dangers of texting while driving in the form of distracted driving is done extensively. It was found that the drivers who text during driving are twenty-three times much more likely to be involved in terms of safety critical events than if they are refrained from texting. Researchers like Jim Stimson and Fernando Wilson on the analysis of their historical data on the road fatalities they concluded that rapid and recent increase in texting messages have resulted in the thousands of road fatalities occurring every year in United States.


It is dangerous to text while driving and this was realised by the legislatures and as a result, they took some preventive measures to discourage this practice. The District Columbia, Guam, Puerto Rico, the forty-four states, and the U.S. Virgin Islands prohibits all the drivers from texting any kind of messages. Remaining of the states have enacted less of comprehensive bans. For an instance, some of the states mentions not to text while driving for the drivers or the public transit drivers.

The law of banning texting while driving is the example of New Jersey. It is being stated that the use of wireless or kind of electronic communication device is banned while driving. If this is being violated then an individual had to compensate $100 in New Jersey.


From the case of Kubert and the other road accident cases New Jersey established a new legislation to take care that no one is texting while driving. Vehicular homicide statute is being amended which mentions to allow an interference of the reckless driving if the individual is using phone while he is driving is being amended with reference to the new law Kulesh’s, Bolis’ and Kubert’s law. The drivers who are texting while driving if injures other person then there are criminal penalties for them.



As the court did impose the third-party liability in the case of Kubert, involves vivid numbers of factors which were not previously combined. The very first one, the first party texter should not be present there in vehicle, she or he has to text from different location. Secondly, reading text message is a voluntary activity and the connected developed between sending and reading messages is attenuated because the third party may not see that the recipient is looking after the messages while driving. Taking it altogether, the above factors create a duty to the public which exceeds public duties of the third parties. It is very important to understand that only duty which is imposed does not create a civil liability for the negligence. The individual must not only show that the duty existed but also that the duty was breached and because of that breach all the above damage took place.


Before the Kubert the civil liability for the third party was not explored. The very common explored liability which arises out of phones involves the liability of the driver, the telephone servicer who is providing wireless telephone and after that the individual using that mobile phone while driving in his capacity as employee. Through the courts direct civil liability was established to the drivers who are using mobile phones while driving. On the other end, actions which are against mobile phone service providers which is based on providing mobile phones to the drivers who may chose to use the phones while driving have brutally failed because there establish no relationship or the duty of due care for the same. A remote third party like of Colonna fell in between who had a relationship with the driver as she was texting the messages to him while he was driving but she had no relation with the mobile phone provider and even she was herself not the driver.



In the case of Kubert v. Best[1] the effective application of the duty of care which is articulated creates a negative impact. Firstly, it is very difficult to prove the duty. In the case of Kubert the court stated that “when the sender has the actual knowledge about the same or the special reason which needs to be known, from the earlier texting experience or else, the person who receives the message will view the message while driving, the one who is sending the messages has breached the duty of care to the public by distracting the driver. This particular duty creates two probable scenarios in which it may apply: (1) actual knowledge to the sender, that the message will be viewed when he is driving (2) special reason to be known that the receiver will view the message while driving.


 Taking consideration when the sender knows that the message is being received by the individual while driving the vehicle, it is very difficult to prove this one with the utmost surety. The term which is being used here is knowledge which means a conscious belief in the truth and it requires actual awareness of the condition or the fact.


It depends on the successful transmission and the delivery of the message that whether it will reach to the driver or not. Text messaging service cannot be relied upon to the 100 per cent. The baseline reliability of the SMS service is not that better and even in some cases it is worse as compared to other communication media such as traditional telephone, email, VoIP. It is being surveyed that about 82 per cent of the respondents who actually sent SMS last year mentioned that it did not reached the intended recipient. There is no way to find it out that whether the sent message did actually reached the recipient and thus it is very difficult to prove that the sender knew that the recipient would read the message.


In the very first scenario, the court mentioned that the sender know the fact that the recipient will read the message while he is driving. However, it is very difficult to make a prediction what a person is going to do at certain point in the future. If we take an instance, the driver can make unpredicted stops for so many reasons- a vehicle emergency, a health emergency, lack of gasoline or a flat tire or else the desire to stop for sometime and to have some snacks and thus might not the message while driving.



The second scenario mentions about the situation when the third party texter has some specific special reasons prior to the texting experience or else in return the recipient will read the text messages while driving. Taking an instance, by demonstrating the fact that the sender of the text messages will observe the recipient that he read messages while he is driving. This is again of high standard. Through the past conduct one cannot predict the future behaviour and thus the pattern of behaviour would be difficult to prove the certainty. Taking an example, the sender can revise that the driver do frequently looks at his phone while he is driving, but that does not appear to satisfy the standards. But on the part of plaintiff it is very difficult for him to prove that the sender knew it before that the driver is texting messages while he is driving. Even, the sender needs direct knowledge of the behaviour of the recipient and without the face to face interactions it is not possible to get the knowledge.



The duty which is articulated in the case of Kubert represents a slight departure from the current legal understanding regarding the duty of the public because the sender is in the remote location, his actions are legal and does not intend to divert the driver or to commit any torturous activity on the part of driver. It can be considered that the driver’s torturous liability is voluntary which is not unavoidable or automatic given the circumstances. All these factors don’t individually represent from the ongoing understanding of the duty of public.

Because of the reason that the level of disconnect and attenuation between an activity of sending the messages and the negligent driving of any other person, in return the other states does not follow New Jersey’s lead by allowing the civil liability for the third party texters. If the other states will also start following the same then a new duty will become the norm.


Everywhere there is important ramification for the drivers and also the texters everywhere. The duty thus in result will create a new duty for the texters. Millions and billions of people do sent messages every day to their respective recipients and it is very safe to assume the fact that they are not aware of the fact that the recipient is driving. Other states gave a thought that for this kind of occurrence any other means of deterrence should be adopted.


However, the inspiration behind the court’s decision in the case of Kubert was not there to create any kind of duty which would be implemented in a frequent manner but to deter texting messages while driving. In this type of case, it does makes the sense that the duty is quite impossible to prove with certainty in a practical manner. To impose the third party liability was an overbroad means to that end. Although in the case of Kubert the news of the court’s decision can deter drivers from texting and driving at the same time.


In the Kubert’s case despite the potentially honorable intensions it is quite undeniable that it created an entire new duty for the due care, one of them goes beyond the duty which is that the third party currently owe the public on the behalf of others. The formulation of new duty creates an uncertainty for the third party texters. Thus, the other states should not follow the same lead as of New Jersey’s in this regard. 






















[1] Kubert v. Best 432 N.J. Super. 495 (App. Div. 2013)


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