In an interesting personal injury case, the court recently held that a “person sending text messages 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 court also noted that criminal penalties now exist “for those who are distracted by use of a cell phone while driving” and who injure others as a result of the distraction. Under this new legislation, specifically NJSA 2C:12-1(c)(1) the jury can infer that a driver is guilty of the fourth degree crime of assault by auto if someone is seriously injured while the driver is using a hand-held device.

In the case of Kubert v. Best, the Appellate Division ruled that although the driver of a pick-up truck who caused serious injuries while on his cell phone was liable, there was not enough proof to demonstrate that his girlfriend, who most likely was texting him at the time, was aware of the fact that he was driving and likely knew that he would be distracted by her text. Thus, the case against the girlfriend was dismissed. There will, however, most likely be occasions when this issue again arises, and the facts demonstrate that the sender of the text was very well aware that the recipient was driving and thus was creating an extremely hazardous situation.

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