Friday, August 30, 2013

The Real Judges of New Jersey

The nationwide debate about limits on texting while driving blew up in an August 27, 2013 New Jersey appellate decision. A three judge panel for the Superior Court ruled that the individual SENDING a text to the driver of a car, who is then in an accident while reading the text, can be sued for injuries caused in the accident.

This is quite an expansion on the tort concept of reasonable forseeability.

Kubert v. Best includes this grisly description of the accident:

On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came south around a curve on Hurd Street in Mine Hill Township, a pick-up truck being driven north 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.

Best stopped his truck, saw the severity of the injuries, and called 911. The time of the 911 call was 17:49:15, that is,fifteen seconds after 5:49 p.m. Best, a volunteer fireman,aided the Kuberts to the best of his ability until the police and emergency medical responders arrived. Medical treatment could not save either victim's leg. Both lost their left legs as a result of the accident.
Here is the bike, after the accident:

The Kuberts sued the driver, who was described as "steering with his elbows," and his 17 year old girlfriend. It was alleged that she sent him a text moments before the accident, and that the driver was distracted by that text at the moment of impact.

The claim against the girlfriend did not get to the jury. The trial court kicked the claim out on the defendants motion for summary judgment. The appellate court affirmed the grant of summary judgment, but said that a remote texter CAN BE SUED for causing an accident if the texter actually knows, or has a special reason to  know that the driver of a car will be distracted by the text.

It appears that routine discovery will now include a subpoena for all of your cell phone records on the day of an accident.  And any texts that were received by your phone (but not necessarily read by you) will permit a good faith claim against the person who was texting you. It will remain a matter of later proof to determine whether your correspondent knew or had special reason to know that you would be distracted (if you read the text, at all).

In this case, there was evidence that the driver was "steering with his elbows" with his head down. But what if there were no such testimony?

I once helped defend a railroad crossing accident case where the dead driver's contributory negligence was demonstrated by witness testimony that the driver and passenger's heads were turned toward each other, as if in conversation, as they were obliterated by the locomotive. But absent that testimony, who knew? The only other evidence was an absence of skid marks.

It will take a few more lawsuits to flesh out the New Jersey court's pronouncement of what is now possible to allege in a tort case (that's right, why limit the ruling to auto accidents?  What if an errant text causes Jethro to lose control of his riding mower, and he buzzes over the neighbor's champion poodle?).

Ideally, there would be no more cases. Just shut your phone off. I'll hit you back at the next rest stop.