Texting a Message to A Driver Imposes Liability for an Accident

In an unanimous decision a NJ Appellate Court held a texter potentially liable for causing a motor vehicle accident:

"The issue before us is not directly addressed by these
statutes or any case law that has been brought to our attention.
"We must determine as a matter of civil common law whether one
who is texting from a location remote from the driver of a motor
vehicle can be liable to persons injured because the driver was
distracted by the text. We hold 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 appeal, we must also decide whether plaintiffs have
shown sufficient evidence to defeat summary judgment in favor of
the remote texter. We conclude they have not. We affirm the
trial court's order dismissing plaintiffs' complaint against the
sender of the text messages, but we do not adopt the trial
court's reasoning that a remote texter does not have a legal
duty to avoid sending text messages to one who is driving.

"We conclude 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. But we also conclude that plaintiffs have not 
presented sufficient evidence to prove that Colonna had such 
knowledge when she texted Best immediately before the accident.

LINDA KUBERT AND DAVID
KUBERT,
Plaintiffs-Appellants,
v.
KYLE BEST, SUSAN R. BEST,
EXECUTRIX OF THE ESTATE OF
NICKOLAS J. BEST, DECEASED,
Defendants,
and
SHANNON COLONNA,

Defendant-Respondent.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1128-12T4
August 27, 2013

….

Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Read more about "texting" and workers' compensation:

Working While Texting: The New Workers Compensation Defense

Jul 31, 2009

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Distracted Driving Workers Compensation Claim Draws Major Public

Feb 11, 2011

A workers compensation claim filed by a state trooper for injuries he sustained while texting and speeding 126 miles per hour that resulting in a fatal accident with oncoming teenagers, a driver and a passenger, has drawn ...

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CDC Urges Employers to Prohibit Cell Phone Use While Driving

Apr 29, 2011

CDC urged employers to prohibit texting while driving. A safety initiative by employers will go along way to reducing workers' compensation costs. "What is already known on this topic? Highway transportation crashes are the ...

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Workers' Compensation: OSHA To Fine Employers for Distracted ...

Apr 18, 2011

Following the policy announced by President Obama in his Executive Order banning texting while driving, OSHA is calling upon all employers to ban texting while driving. It is the intention of OSHA to provide education and ...

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Dedicated Bike Lanes Can Prevent On-The-Job Injuries

Traffic accidents are major factors in the death of workers on the job. A recent report from the American Public Health Association reports that separate cycling lanes will prevent accidents.

Objectives. We compared cycling injury risks of 14 route types and other route infrastructure features.

Methods. We recruited 690 city residents injured while cycling in Toronto or Vancouver, Canada. A case-crossover design compared route infrastructure at each injury site to that of a randomly selected control site from the same trip.

Results. Of 14 route types, cycle tracks had the lowest risk (adjusted odds ratio [OR] = 0.11; 95% confidence interval [CI] = 0.02, 0.54), about one ninth the risk of the reference: major streets with parked cars and no bike infrastructure. Risks on major streets were lower without parked cars (adjusted OR = 0.63; 95% CI = 0.41, 0.96) and with bike lanes (adjusted OR = 0.54; 95% CI = 0.29, 1.01). Local streets also had lower risks (adjusted OR = 0.51; 95% CI = 0.31, 0.84). Other infrastructure characteristics were associated with increased risks: streetcar or train tracks (adjusted OR = 3.0; 95% CI = 1.8, 5.1), downhill grades (adjusted OR = 2.3; 95% CI = 1.7, 3.1), and construction (adjusted OR = 1.9; 95% CI = 1.3, 2.9).

Conclusions. The lower risks on quiet streets and with bike-specific infrastructure along busy streets support the route-design approach used in many northern European countries. Transportation infrastructure with lower bicycling injury risks merits public health support to reduce injuries and promote cycling.

Read More: http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2012.300762?journalCode=ajph&&

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Cell Phones Usage For Commercial Interstate Drivers to be Banned

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OSHA To Fine Employers for Distracted Driving Accidents

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Commercial Driver Fatigue Questioned as a Pre-exisiting Condition?

Falling asleep at the wheel is a common cause of accidents for commercial drivers. The Federal Motor Carrier Safety Administration  (FMCSA) of the U.S. Department of Transportation is exploring  the issue that such conditions as excessive  daytime sleepiness should be evaluated by medical examination in an effort to predict future probabilities of having a bad day at the wheel and potential crashes at the wheel because of sleepiness. 

If a sleep disorder can be identified and documented, that condition maybe determined to be a pre-exisiting medical condition. Apart from the third party liability that could be imposed upon an employer for identification and non-identification of the medical condition, the issue of an allocation for a pre-exisitng medical conditions (prior-functional credit) may exist in a workers' compensation claim as well as an event that can be attributed to a risk in the course of employment.

The term "prior functional credit" refers to the credit given to the employer, or to the employer's insurance carrier, for the loss of function of any part of the body which an employee had sustained before a subsequent injury or occupational disease for which the employer in question is responsible.  Over the years there have been dramatic changes enacted by the Legislature accompanied by varying interpretations by the courts with regard to the law addressing credits to be afforded to the employer for both non-work and work connected injuries.

The employer no longer takes an employee as they find them. Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A.2d 168 (1966). An individual suffered from asbestosis and bronchitis, and medical testimony was presented by the petitioner's expert apportioning a percentage of the functional loss to cigarette smoking.  The employer was awarded a credit for the previous loss of function which could be attributed to the employee's cigarette smoking, since the legislatively enacted amendments permitted the employer to receive credit for an employee's prior loss of function involving the same body part affected by the compensable occupational disease regardless of whether compensation was received for the earlier injury.  In effect, the employer no longer takes employees as it finds them.  The court stated that the credit to employers for previous loss of function, whether work-related or not, was an incentive to encourage employers to hire workers with pre-existing disabilities.  Field v. Johns-Manville Sales Corp., 209 N.J.Super. 528, 507 A.2d 1209 (App.Div.1986), certif. denied 105 N.J. 531, 523 A.2d 172 (1986); Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (App.Div.1992).

Additional questions may arise as to whether the risk is actually associated with the employment. The Court may also evaluate the risk associated with the employment task in evaluating compensability.  Where the risk was not enhanced by the business interests of the employer, and there was no exercise of control by the employer over the employee, the event is usually deemed to be non-compensable. If the risk in indeed removed from the course of employment then the employer may be denied the exclusivity bar and liability on the employer could be imposed in a civil action. 

The FMCSA commented, "....measuring an individual’s sleepiness today is not going to predict how sleepy the person will be 6 weeks from now. Several factors influence sleepiness, including prior sleep time, medications, and time of day, so it is a very difficult thing to assess."


Click here to read more about "pre-exisiitng conditions" and workers' compensation.

Employee Cell Chat Results in $5.2 Million Payment to Widow by Employer

The distractions caused by cell phone use and other electronic gadgetry are increasing the exposure of employers to monetary exposure well beyond those benefits that employers are covered for under their workers’ compensation policies. A fatal accident contributed to by the employee’s use of a cell phone while driving resulted in a recent settlement of $5.2 million.

While employers’ are shielded to limited and scheduled statutory benefits under workers’ compensation for injures arising out of and in the course of their employment, injured third parties may pursue a civil action against the employer for the employees negligence. An employee who was distracted by cell phone use caused a motor vehicle accident that resulted in the death of a widowed mother of four children. Her estate filed a civil claim against the employer alleging that employee was negligent for using the cell phone while driving.

In a recent article in TRIAL magazine, Robert L. Sacks Jr., discusses the liability caused by text messaging and other distractions while driving. “Drivers with one hand on the wheel and one hand on the phone are a common sight, at least in states where it’s still legal to talk and drive. But the cell phone is only one of many potential high-tech distractions. It’s now possible to talk, text-message, take pictures, check the global positioning system (GPS), adjust the satellite radio, scroll through the pages of your MP3 player, send e-mail, and try to drive—all at the same time.”44 TRIAL 2 (February 2008).

Sacks cites the work of psychologists at the University of Utah that it is 50% more dangerous to drive while text messaging than while talking on a cell phone. This increase a serious danger to motorists.

This enhanced risk can result in serious economic liability to employers who permit or direct their employees to become distracted while driving in the course of their employment. Employers maybe wise to immediately issue rules prohibiting such activity.