Don’t text someone who you know to be driving. Recently, New Jersey’s Appellate Division took the surprising, but we think necessary step, of declaring that an individual who sends a text to someone who is known to be driving and knows that the driver will read the text while driving, can be held liable for any damage caused by the driver. In Kubert v. Best, et al., 2013 WL 4512313, the plaintiffs, Linda and David Kubert, a married couple, were riding a motorcycle when they were struck by the defendant, Best, who was texting while driving. As a result of the collision, the Kuberts each lost their left leg. Aside from suing Best, the Kuberts also sued Best’s 17 year old girlfriend, Shannon Colonna, under the theory that she aided and abetted Best’s violation of New Jersey’s anti-texting-while-driving laws. The Bests further asserted that Colonna had an independent duty to not text someone who was known to be driving at the time. The trial court rejected the plaintiffs’ theories and granted Colonna’s summary judgment motion dismissing the suit against her. The Appellate Division unanimously upheld the dismissal of the Kuberts’ claim against Colonna because the evidence presented by the plaintiffs in opposition to the motion did not demonstrate that Colonna knew that Best was driving or that he would read her text while driving. However, in a split decision, two of the three appellate judges advanced New Jersey’s law and held that an individual who sends a text to a driver and who knows that the driver will read the text while driving can be held liable for the damage caused if the driver causes a collision while texting. The court reasoned that even someone not inside a vehicle has a duty to not cause a distraction to a driver. The court was mindful of creating too broad a duty and specifically did not impose this duty on anyone who sends a text to a driver. Instead, the court confined this enlarged duty only to those individuals who knowingly engage in conduct that will distract the driver. In support of this expansion, the court cited previous cases in which a passenger was held liable for creating a distraction that led to a collision. The common principle being that while a driver has a duty to focus on driving safely, those around the driver also have a duty to refrain from knowingly distracting the driver. So while the Appellate Court may have stepped out on a limb with its holding in the Kubert case, it did so with the support of long enshrined notions of duty and common sense. Of course, there will be critics who object to the imposition of a duty on a remote texter, but this holding will not impose liability on just anyone who happens to send a text that is read while the recipient is driving. Moreover, how can one find moral or legal fault with a holding that is narrowly tailored to impose liability only on an individual who knowingly texts a driver that he or she knows will read the text and lose focus on the task of driving? Would these critics also oppose a finding of liability against a passenger, who distracts a driver in a fit of sophomoric humor by suddenly yelling to the driver, “look out for that squirrel!“? If the passenger knowingly distracts the driver and a collision ensues, the passenger should, and likely would, be held responsible. The same obligation to refrain from knowingly distracting a driver should exist for individuals inside and outside the vehicle. Thankfully, now it does.