Q&A: Can the sender of text message be liable for causing a car crash?

Widespread Mobile Communication 
Mobile communication in the workplace is already widespread, and its use is increasing.  Many employers give their employees smartphones, and many expect prompt responsiveness from their employees when they email, call or text message them. However, a recent decision out of New Jersey should be cause for Canadian employers to re-visit their policies on cell phones and other mobile communication devices.
Sender of Text Message Liable for Car Crash
In Kubert v. Best, Shannon Calonna and her friend Kyle Best were texting each other while he was driving. Mr. Best struck a motorcycle, seriously injuring its two passengers. In addition to suing Mr. Best, the injured motorcycle passengers sued Ms. Calonna, arguing that she had a legal duty to avoid texting a person whom she knew was driving.
The motorcycle passengers lost their case against Ms. Calonna. However, the New Jersey Court of Appeal agreed with them that a duty to not text message someone who is driving does indeed exist, ruling that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.” In this case, there was not enough evidence to establish that this duty attached to Ms. Calonna. While cases involving accidents caused by texting and driving are common, this is the first case where a court has ruled that the sender of a message could be liable in certain circumstances.
An Employer Could be Liable for Causing an Accident
This case is of particular interest to employers because an employer-employee relationship would clearly satisfy the “special reason” requirement articulated by the Court. Thus, an employer could be liable for causing an accident if it sends text messages, emails, or other mobile communications to its employees while they are driving.
While this case is not law in Canada, concern in this country over texting and driving is increasing as the problem becomes more widespread.  This case provides a comprehensive framework and persuasive rationale that a Canadian plaintiff could easily adopt. To protect themselves, employers should make sure that their mobile communication policies unequivocally forbid their employees from using any mobile communication equipment while they are driving, and also actively enforce this policy.