Beware A New Way Employers and Employees Could Be Liable For Texting On The Job

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Texting, like email, Facebook posts and videos can get employees and employers into trouble.  The most common situations involve harassment, discrimination, and violations of confidentiality provisions.  However, because of a recent lawsuit in New Jersey, anyone who texts or emails another individual should now beware of the potential of being held liable when a recipient of that text/email causes an auto accident.

According to the Governors Highway Safety Association, at least 41 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban text messaging for all drivers.  Additionally, powerful campaigns across the nation, like It Can Wait, further raise awareness regarding the dangers of distracted driving.  Despite these laws and campaigns, reports of tragic accidents involving drivers texting while on the road occur at an alarming rate.  Perhaps with these issues in mind, a New Jersey appeals court (Kubert v. Best) recently decided that a remote texter can be held liable to third parties for injuries caused when the distracted driver has an accident.

What The Lawsuit Was About:

According to the Court, on the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger.   During the Kuberts’ ride, a pick-up truck driven by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of travel.  David Kubert attempted to evade the pick-up truck but could not.  The front driver’s side of the truck struck the Kuberts and their motorcycle.  The collision severed, or nearly severed, David’s left leg.  It shattered Linda’s left leg, leaving her fractured thighbone protruding out of the skin as she lay injured in the road.  Eventually both David and Linda each lost a leg.  Later, the Kuberts filed their lawsuit against Best and also against Shannon Colonna, Best’s friend who had been texting with Best at the time of the accident.

What The Evidence Showed:

During the lawsuit, the evidence revealed Best and Colonna texted each other sixty-two times on the day of the accident, about an equal number of texts originating from each. They averaged almost fourteen texts per hour for the four-and-a-half-hour, non-consecutive time-span they were in telephone contact on the day of the accident.

The Court further noted that the telephone record also showed that, in a period of less than twelve hours on that day, Best had sent or received 180 text messages.  In her deposition, Colonna acknowledged that it was her habit also to text more than 100 times per day.   She said: “I’m a young teenager. That’s what we do.”  She also testified that she generally did not pay attention to whether the recipient of her texts was driving a car at the time or not.  Best also admitted that he and Colonna exchanged text messages within minutes of his beginning to drive.

What The Court Did:

A lower court in New Jersey dismissed the Kuberts’ claim against Colonna, and the Kuberts appealed.  In a somewhat surprising decision, the New Jersey appeals court created a new standard of care for this area of the law:  a remote texter can be held liable to third parties for injuries caused when the distracted driver has an accident if the person sending the texts knew the texts were being viewed by the recipient as he or she was driving.

Specifically, the court wrote:  “We conclude 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.”  While the court determined that Colonna was not liable under this new standard, this somewhat surprising new standard of law could have significant ramifications for employers and employees (and anyone who uses social media).

What This Means For Employers and Employees:

This new standard in New Jersey is troubling.  On a basic level, does it make sense to hold someone liable for sending a text, even if the recipient is driving?  After all, the recipient is the one who is bound by law (in at least 41 states) to avoid picking up their smartphone while driving.  Indeed the court recognized that “The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so.”

If an employee is driving for a work related purpose, could the employer be held liable if the employee reads a text and causes an accident?  The answer is likely “yes.”  This is so because even without the issue of texts, a third party may be able to hold a company liable for a auto accident caused by the company’s employee.

But, let’s say the employee was driving home and received a text from his supervisor while driving, and then causes an accident while reading it.  Could the employer be held liable even though the employee was not driving while “on company time?”  Under the new New Jersey ruling, the company could be liable if the supervisor knew that the employee was driving at that time, even if the driver was “off-duty.”

In another scenario:  what if the employee was driving home and received a text message from his wife that had nothing to do with work.  And, what if the driver was reading that message on a smartphone provided by his employer.  Could the company be held liable just for providing the smartphone?

To attempt to avoid liability in this evolving area of the law, employers should take steps now.  The first and most important is to create and enforce a policy prohibiting distracted driving.  Having appropriate policies in place will help the company attempt to avoid liability.  And, this topic was one of the six key social media-related policies I wrote about last year for employers to update immediately.  Second, the company should train managers/supervisors so that they do not in fact, or impliedly, expect their subordinates to check email/text messages immediately (while driving) but rather when the employee is stationary.  Third, the company should do as much as it can to educate employees on all handbook policies, including the policy against distracted driving.  Employees should understand that violations of such policies can and will lead to discipline including discharge.

The New Jersey appellate court ruling demonstrates that the law is trying to evolve to deal with social media and technology.  This case may be one of the first, but will certainly not be the last, to alter liability in significant ways.   And, in the future, will it make a difference if the text starts with “Don’t read while driving,” or “This can wait?”

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Wu
James Y. Wu contributes a monthly column on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu
James Wu
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