According to a recent decision by New Jersey’s Appeals Court, the answer is YES! In Kubert v. Best, 432 N.J. Super. 495, 75 A.3d 1214 (App. Div. 2013), the Court considered this argument made by a couple who each lost their left leg in a 2009 crash with an 18-year-old whose truck drifted across the center line and hit them riding on their motorcycle. The plaintiffs had already settled with the driver, but they also sued his 17-year-old girlfriend, who had texted him shortly before the crash. The court did not find the girlfriend liable in this particular case. However, they opened the door to finding liability for sending a text to a driver in certain situations.
As matter of first impression, the Court held 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 drive a text at that time.” 75 A.3d at 1229. Although the girlfriend could have been held liable under this new ruling, the Court determined that she was unaware that her boyfriend was driving at the time she sent the text. Additionally, the Court found that the evidence failed to establish liability of the sender on the basis of her aiding and abetting her boyfriend’s negligent driving while using cell phone.
It is unclear how such an argument would be resolved by an Arizona court. While New Jersey prohibits texting while driving, and common sense should bar it too, Arizona is one of only nine states that still does not ban drivers from texting.