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N.J. Court Holds Remote Texter Could be Responsible for Texting Driver’s Accident

Employers - especially those who provide their employees with cell phones or who allow or permit their employees to use cell phones — should be mindful about a recent case out of New Jersey, as it has potentially far-reaching implications.

In this case, the husband and wife were seriously injured when their motorcycle was struck by an 18-year old driver who was texting while driving and who had crossed the center line of the road. The parties resolved the dispute between them.  

The husband and wife also sued the driver's 17-year old friend who was texting the 18-year old driver  most recently before the accident. The trial court dismissed the husband and wife's claims against the 17-year old and they appealed. 

The Superior Court of New Jersey, Appellate Division, reviewed the matter. First, the Court noted that New Jersey law prohibits texting while driving, but that the statute does not squarely address the situation at issue here — "whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text."

The Court answered this question in the affirmative, holding that "the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."  

It is easy to see how this could ultimately spiral into potential liability for employers. Many employers require their employees to utilize cell phones throughout the work day, from various locations, in order to communicate regarding various work matters, with both other employees and third parties. While many employers maintain hands-free policies, it is likely that some employees nevertheless text and/or talk and drive. Some employers have no policies at all concerning use of cell phones.

Based upon this court's reasoning, any employee who is text messaging with someone who happens to be driving, and has knowledge that the recipient is driving, could be held responsible for any resulting accident. If the employee is at work or using a work phone, the employer could feasibly be on the hook. The employee could be doing nothing wrong technically, but under this holding, in New Jersey, knowing that the driver is driving and could be distracted by the incoming text is enough to potentially impose liability on the remote texter (or, here, the employee). Since many states have indemnity provisions whereby employers must indemnify employees for expenses incurred in the regular course and scope of conducting the employer's business (e.g., California's Labor Code 2802), this could prove costly for employers.

While this decision of first impression is only binding on New Jersey courts, it is easy to see how this could develop into accepted precedent across the country. Employers should, therefore, revisit their electronic communications policies and determine whether modifications are necessary to ensure that employees are not utilizing work phones to text and drive, or to text with drivers who are actively driving.  

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