A New Jersey appellate court held that a girl was not liable for sending a text to her boyfriend seconds before the truck her boyfriend was driving crossed the center line and severely wounded a husband and wife riding a motorcycle. Though the text-sending girl was not responsible in this case, the more interesting aspect of the court's decision lies in how it outlined those circumstances in which one could be liable for sending a text that causes a wreck. It held that a person has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. The lower court had dismissed plaintiffs' negligence claim against the girl who sent the text, holding that she did not have a legal duty to avoid sending the message, even if she knew the recipient was driving. The appellate court agreed that plaintiffs had not presented sufficient evidence to prove that defendant knew or had special reason to know that the recipient would view the text while driving. But it disagreed with the lower court's decision to the extent the lower court held that one could not be "electronically present" with the driver and cause him or her to crash.

In formulating its rule on liability, the court held that text-senders have a "limited duty" to the members of the public sharing the road with text recipients:

[O]ne should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving. Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.

So one should remember that the dangers of texting are not confined to the road. One may be liable under the right circumstances even if well-removed from the accident.

Kubert v. Best, 2013 WL 4512313 (N.J. App. August 27, 2013)