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Texting a Driver: Is a Sender Liable for an Accident?

Texting a Driver: Is a Sender Liable for an Accident?

It is against the law to text while driving in Nevada. Someone who gets into an accident while texting can expect to have their cell phone use become a focus of the insurance companies and lawyers who get involved in the case, especially if the accident caused serious personal injuries. But are there situations where the sender of a text could bear some liability for an accident?

The driver bears primary responsibility

Perhaps the first thing to understand about this question is that the driver of the vehicle that causes an accident bears responsibility for the accident. Because Nevada drivers are prohibited from using their cell phones except in response to an emergency, a driver who gets distracted by a text message is already breaking the law. Strictly speaking, a driver who feels the need to look at a text message should pull to the side of the road.

A New Jersey court examined this question in 2013. In Kubert v. Best, 432 N.J. Super. 495 (2013), a young driver caused an accident while he was reading a text. Like Nevada, New Jersey had adopted a law prohibiting hands-on cell phone use while driving. N.J.S.A. 39:4-97.3. The injured plaintiffs sued both the driver and the sender of the text, arguing that the sender was “electronically present” at the time of the accident and should be held responsible for the consequences of her text message. The court in Kubert found that the sender was not liable.

A potential exception for knowingly sending distracting texts

Although it ruled in favor of the sender in the Kubert case, the New Jersey court held that the sender of a text can still be held liable for injuries that are proximately caused by sending a text if the sender knew, or had special reason to know, that the recipient would view the text while driving. Kubert, 432 N.J. Super. at 507. A Pennsylvania court cited Kubert in allowing a case to go forward against the sender of a text under similar circumstances.

Although New Jersey cases aren’t binding in Nevada, the novel nature of this question may give a court reason to consider taking the Kubert court’s lead in future cases. Given the right set of facts, the sender of a text message might effectively be committing an independent act of negligence that contributes to an accident. Sending a distracting text could be similar to a passenger acting in a particularly distracting way—hitting the driver or covering the driver’s eyes, for example. When the sender knows that the recipient is driving, and the text could be a distraction, there’s a possibility that liability could stick.

Another side to these cases is whether the driver who received the text, or the recipient’s insurance carrier, could sue the sender. It remains to be seen how questions like these will play out going forward. Although in most circumstances courts are likely to reject the idea that merely sending a text message creates liability for an accident, especially when the driver is acting wrongfully by reading it, chances are good that the right facts will come together to test these issues before a Nevada court.

GGRM is a Las Vegas personal injury law firm

The attorneys at the law firm of Greenman Goldberg Raby Martinez have broad experience with personal injury cases. If you have been injured in an accident and have questions about your legal options, please do not hesitate to reach out to us. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.