Following a recent New Jersey Appellate Division decision, efforts to battle distracted driving in the state seemed to experience a major setback. In State v. Malone the court ruled that while a motorist is prohibited from holding a telephone to send a text message or email, a driver is permitted to activate, deactivate or initiate a function on his telephone, including answering the phone, ending a phone call or dialing a phone number. To me, this is an arbitrary distinction by the court between sending a text message and dialing a telephone number. Is dialing a 10-digit phone number while driving any safer than sending a short text message? Obviously not, and yet drivers are allowed to search for numbers on their mobile phones but not letters.
More recently, a New Jersey Appellate court recognized a new legal duty among the senders of text messages, holding that, “when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text message at that time.” Kubert v. Best (Docket No. A-1128-12T4). This is a narrowly tailored legal duty, and we will have to see how courts (1) define the “special reason to know” and (2) determine when it is “likely” that a driver will read a text message while driving.
However, in light of a recent University of Nebraska Medical Center study showing an increase in death rates in distracted driving accidents, (Stimpson, J. ,Wilson,F. and Muellman, R., “Fatalities of Pedestrians, Bicycle Riders, and Motorists Due to Distracted Driving Motor Vehicle Crashes in the U.S.”), even a narrowly tailored legal obligation imposed on the senders of text messages is a welcomed step toward safer roads for New Jersey drivers, bicyclists and pedestrians.