By: Aaron Gevers*
December 27, 2013
I. The New Duty
New Jersey residents have a new reason to be cautious when sending a text message to their friends . . . or so they may think upon a cursory reading of Kubert v. Best, a recent decision by the Appellate Division. The decision attached liability to the sender of a text message when the driver reading that text message causes an accident. However, the court’s ruling is far more narrowly crafted than many people have been led to believe. In fact, there are significant evidentiary limitations that are sure to render this new liability moot in practice.
Kubert came before the Appellate Division on an appeal from summary judgment granted in favor of Shannon Colonna, who was a remote third-party texter. Throughout the day of the underlying accident, Colonna exchanged numerous text messages with the driver at fault, Kyle Best. The evidence demonstrated that Colonna texted Best and Best replied shortly prior to his 911 call to report his collision with the motorcycle being ridden by Linda and David Kubert. The Kuberts argued Colonna could be liable if a jury concluded that her texting was a proximate cause of the accident. More specifically, they asserted Colonna aided and abetted Best’s unlawful texting while driving, and also breached her independent duty to avoid texting a person who was driving a motor vehicle.
Though the court was ultimately unpersuaded that Colonna was potentially liable as a matter of law, it concluded 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.” To limit the holding of Kubert, the Appellate Division carefully crafted this new standard of care. It contains a specific knowledge requirement, meaning the sender must actually know or have a special reason to know the driver will view the text message based on “prior texting experience or otherwise.” The court foresaw the adverse effects of an overly broad ruling and hence underscored that its holding “will not require that a sender of a text predict in every instance how a recipient will act” and “will not interfere with the use of text messaging to a driver that one expects to obey the law.”
II. Establishing the Duty: A Fool’s Errand
Acknowledging the Appellate Division’s attempt to limit the swath of cases where this new standard may successfully attach liability, it is doubtful from an evidentiary standpoint that a case will result in a favorable verdict for a plaintiff. Quite simply, proving that a remote texter not only knew that the recipient was driving, but also that the recipient would view the text while driving, is so high a threshold as to render the claim practically impossible to prove. Issues of character, habit, and authentication, not to mention a potential conflict of laws conundrum if the sender is out of state (or country for that matter), all plague the plaintiff’s attorney.
It appears the only way to prove that the sender knew the recipient was driving and would be distracted is through the introduction of character evidence. The problem is that character evidence is inadmissible when it is introduced to prove that a person acted in conformity with the specific trait of care or skill or lack thereof. To try and establish liability, evidence would have to be proffered to show the recipient acted in conformity with the specific trait of care of distracted driving. On its face, this is nothing more than propensity evidence and should be excluded. Specifically, New Jersey courts hold that evidence of a general character trait for carefulness is not admissible. This holding of course implies that evidence of the converse character trait is also inadmissible. Therefore, any character evidence introduced to show that the sender knew the driver was a careless driver and would be distracted by the text message is inadmissible.
The argument that this type of evidence would fall under the “element of the claim” exception to the rule is not persuasive. This is because the sender’s “knowledge” is the primary element at issue. The elements of the duty that is part of the negligence claim do not include any specific mention of character, but are instead limited to: 1) transmission of a text message to a recipient that is driving and 2) who the sender knows will view the message. Further, were such character evidence admitted, it has the significant danger to “convert a trial of the issue into a judgment of the person.” Instead of presentation of evidence about whether the sender knew the recipient driver would read the message, the trial would likely become burdened with exhaustive circumstantial evidence concerning whether or not the driver displayed careless driving tendencies in the past. Indeed, it becomes unduly prejudicial and confuses the issues when you consider the significant time expenditure to demonstrate such a character trait in the absence of direct testimony. On this basis alone the evidence should be excluded.
Similarly unavailing would be an attempt to use habit evidence to demonstrate that the sender had knowledge that the recipient driver would necessarily be distracted by the text message. Indeed, the Kubert court implies habit evidence is the correct evidential route to travel in order to prove that a sender has knowledge based on prior texting experience. Because habit “involves a regular practice of responding to a particular kind of situation with a specific type of conduct,” it seems unlikely that responding to text messages while driving could be established as a highly regular practice. In order for habit evidence to be admitted, “the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner, but rather, conduct that is semiautomatic in nature.” Although conceivably capable of being shown, it can hardly be said that a person’s responding to a text while driving is “semiautomatic” in nature. Rather it’s an inherently volitional act requiring a concerted effort to complete. On this sole basis, habit evidence of texting while driving should not be admitted.
What the court must discern, in ruling on a hypothetical motion for admission of habit evidence, is how specific the habit must be. Must the habit simply be responding to any text messages from any sender while driving? Or rather, should its scope be limited to a specific habit of responding to the defendant sender’s text messages while driving? If the conduct is responding to texts from any sender while driving, for the purposes of introducing habit evidence, it cannot be said that such conduct is of the requisite level of specificity to be admitted. The Appellate Division unfortunately remained silent on these issues in Kubert.
It appears highly unlikely that a plaintiff could prove that the driver routinely responded to text messages while driving with evidence other than direct testimony or an admission. Other methods of proof, for instance by introducing numerous past cell phone records to show text messages were sent while a defendant was supposedly on a scheduled road trip or commute presents significant issues. One such issue which is inherent to any text message or email is authentication. Simply because a text message was sent or received does not mean the owner of the phone or wireless account was the one to send or receive said message; another individual could be present in the car. Alternatively, as is more frequent, a text message could have been both sent and received via wireless connectivity and vehicle voice prompts.
Even were one able to offer substantial proof, a mere showing that the driver routinely responded to text messages while operating a vehicle does not show the sender knew the driver would react in that manner. Therefore, not only must a plaintiff prove a defendant driver’s habit, but also that the sender was sufficiently exposed to such behavior as to develop a reason to know the driver would continue that habit upon receipt of a text message from the sender. In sum, synthesizing Kubert’s standard and implied requirement of habit evidence, it appears that to establish third-party liability, a plaintiff must show 1) the driver routinely responded to text messages while operating a vehicle, 2) the sender knew the driver routinely engaged in this practice, and (3) the sender knew the recipient was driving at the time s/he sent the text message to the driver.
While the Appellate Division did a commendable job in attempting to craft a coherent and narrow rule that allows remote texters to be held liable for motor vehicle accidents, the court’s endeavor is ultimately fruitless. Given the substantial evidentiary hurdles imposed by the duty rule and the real-world difficulties in procuring salient evidence, the duty articulated in Kubert will not likely see any successful employment.
* Aaron Gevers is a May 2014 J.D. Candidate at Rutgers School of Law – Camden and a Staff Editor for the Rutgers Journal of Law & Public Policy.
 432 N.J. Super. 495 (App. Div. 2013).
 Id. at 503.
 Id. at 504.
 Id. at 505-506.
 Id. at 507.
 Kubert, 432 N.J. Super. at 507; see also N.J. STAT. ANN. § 39:4-97.3 (West, Westlaw current through L.2013, c. 169 and J.R. No. 13) (prohibiting the use of a non-hands free cell phone while driving).
 Kubert, 432 N.J. Super. at 507, 519.
 Id. at 517.
 Id. at 518.
 In addition to authentication issues, discussed below, the court assumes that text messages are always a one on one conversation. In fact, many text messaging programs provide for group messaging. Where two remote parties may message each other and a third party receives the message while driving and gets in an accident, who would be liable? All the parties? Just one? None? Based on Kubert, it seems so long as the remote senders knew the recipient was driving and would view the text, they would all be liable. Scaling this up to an active group of many messengers, it doesn’t seem prudent in public policy terms to allow ten other people to be held liable for one individual’s careless driving.
 While not discussed here, conflict of laws and jurisdictional issues are present with an out-of-state sender. It can hardly be said the sender availed himself or that texting equated to minimum contacts with the state in which the recipient was driving to establish personal jurisdiction. See generally Blakey v. Cont'l Airlines, Inc., 164 N.J. 38 (2000). The act of texting cannot be equated to internet message boards as it is directed solely to one individual. See generally Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
 N.J. R. EVID. 404(a).
 State v. Kately, 270 N.J. Super. 356, 361 (App. Div. 1994) (citations omitted).
 N.J. R. EVID. 404(c) (“Evidence of a person's character or trait of character is admissible when that character or trait is an element of a claim or defense.”).
 Kubert, 432 N.J. Super. at 507.
 Johnson v. Dobrosky, 187 N.J. 594, 604 (2006) (citing State v. Burke, 354 N.J. Super. 97, 109 (Law Div. 2002)).
 See N.J. R. EVID. 403.
 See N.J. R. EVID. 406.
 Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 191 (App. Div. 2006) (quoting Sharpe v. Bestop, Inc. 158 N.J. 329, 330 (1999)).
 Sharpe, 158 N.J. at 331 (quoting Thompson v. Boggs, 33. F.3d 847, 854 (7th Cir. 1994)) (internal quotation marks omitted).
 “Specificity is what distinguishes habit from character.” Sharpe, 158 N.J. at 332 (citations omitted) (internal quotations omitted); see generally 23 CHARLES A. WRIGHT & KENNETH W. GRAHAM, JR., FED. PRAC. & PROC. EVID. § 5273 (1st ed. 1980 & supp. 2013).
 See Sharpe, 158 N.J. at 331.
 See N.J. R. EVID. 901. See generally Griffin v. State, 19 A.3d 415 (Md. 2011), for issues relating to authentication of electronic messages and postings.
 See generally Matt Richtel & Bill Vlasic, Voice-Activated Technology Is Called Safety Risk for Drivers, N.Y. TIMES, June 12, 2013, at B1, available at http://www.nytimes.com/2013/06/13/business/voice-activated-in-car-systems-are-called-risky.html?_r=0.