SAMUEL FALK – More than 3,000 people die, and an excess of a quarter-million are injured, in the United States each year because of texting while driving. Despite 44 states, Washington D.C., Puerto Rico, Guam, and the U.S. Virgin Islands banning texting and driving, 47 percent of adults still admit to partaking in that hazardous activity. Texting while driving laws (“Texting While Driving Laws”) prohibit the use of electronic devices to write, send or read messages while driving. That prohibition includes similar types of communications, such as emails, instant messages or other internet-based messages. Besides certain federal Texting While Driving Laws banning federal employees from texting while driving, state and local governments are left to enact similar statutes for the rest of the American people. Consequently, certain states have passed Texting While Driving Laws that punish citizens for engaging in such behavior. However, the prevention of related accidents has not yet been realized due to difficulties in enforcing such laws.
Enforcement of Texting While Driving Laws poses a difficulty because there are many exemptions. One can still use navigation or the voice talk to text function on his or her phone, and some state statutes do not permit primary enforcement, which allows police officers to pull over and cite drivers even if they observe no other violation. In the face of these difficulties, accident liability for those who text while driving further complicate the extent of enforcement.
In Kubert v. Best, a New Jersey Court of Appeals took an additional measure to reduce the dangers of texting and driving when it held that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the text sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.” This holding attempts to discourage people from compelling a driver to use his or her phone while operating a vehicle. Such a ruling confuses the burden of proof a plaintiff must show and sets a standard that is difficult, if not impossible, to prove. In other words, how can one be reasonably expected to show that he or she knew that the sender of a text message had knowledge that the recipient was driving and would become distracted by viewing the message?
Due to this new duty created by the court, New Jerseyans need to become more cognizant of texting those who are currently driving, even though the reality of liability for failing to do so seems farfetched. Nevertheless, the court’s holding has initiated a completely new concept for potential civil liability in similar situations. Even though other states would not be bound to follow New Jersey’s ruling, other jurisdictions could adopt laws that reflect the court’s holding, all with an expectation to combat the dangers of new technological advances from causing injuries and unnecessary financial expenses. Due to the seriousness and the consequences of texting while driving, the struggle to continue finding ways to enforce Texting While Driving Laws will most likely endure. For example, police officers have taken to subpoenaing a person’s cell phone records to acquire some form of definite proof. In addition, several police departments have provided instruction and even some form of training to more easily spot drivers texting while driving. However, besides such newfound measures being taken, people will arguably become more conscious of refraining from texting while driving with further education, or at least we can optimistically hope.
