Everyone knows the driver who texts behind the wheel can be liable for the crash that follows. Far fewer people know that, in New Jersey, the person on the other end of the conversation — the remote texter who never came near the road — can sometimes be liable too. That surprising rule comes from a 2013 New Jersey case, and it’s worth understanding both for crash victims and for anyone who texts a friend they know is driving.
The Kubert v. Best rule
In Kubert v. Best, 432 N.J. Super. 495 (App. Div. 2013), a young driver looked at a text and struck two motorcyclists, who suffered catastrophic injuries. The victims sued not only the driver but the teenager who had been texting him. The Appellate Division recognized something new: a remote texter can owe a duty of care to people on the road — but only under a narrow condition.
The court held that the sender is liable only if they knew, or had special reason to know, that the recipient was driving and would view the text while driving. Simply sending a message to someone who happens to be behind the wheel is not enough. There has to be actual knowledge (or something close to it) that the person was driving and would read it then and there.
Why this rarely applies — and when it does
In practice, the sender-liability theory is hard to prove and rarely the main event in a crash case. Most of the time there’s no evidence the texter knew the other person was driving. But the facts that unlock it do happen: a back-and-forth thread in which the driver announces they’re driving, a sender who keeps the conversation going knowing the recipient is at the wheel, or messages timed to the minute of the collision.
Proving it requires the same digital evidence that drives any modern crash case — cell phone records, message timestamps, and the content of the thread, obtained through subpoena and preserved before anyone deletes it.
The driver is still the primary defendant
None of this lets the texting driver off the hook. New Jersey bans handheld phone use behind the wheel under N.J.S.A. 39:4-97.3, and a driver who reads a text and crashes is the obvious defendant — that’s a straightforward negligence (and often a cell-phone-ticket) case. The Kubert theory is an additional avenue when the facts support it, especially valuable when the at-fault driver’s insurance can’t fully cover catastrophic injuries.
Whether the case is against the driver, the remote texter, or both, the steps after the crash are the same: get the police report, preserve the phones and records, and document the injuries. We walk through all of that in our guide on what to do after a NJ car accident.
Catastrophic crash? Every source of recovery matters
When injuries are severe, finding every responsible party and every available insurance policy can be the difference between a settlement that covers a lifetime of care and one that doesn’t. If a distracted-driving crash hurt you or someone you love, we’ll investigate every angle — the driver, the phone records, and, where Kubert applies, the sender. The consultation is free.
Part of our complete guide: For every related New Jersey offense, claim, and defense in one place, see our NJ Car Accident Guide.