Could Cellphone Use Constitute Electronic Presence at Crime?

The National Post recently presented the interesting case in which a New Jersey judge must decide whether someone can be “electronically present” in a car, even if they physically aren’t there, and, if so, whether the person can be held liable for events that take place, or that are caused by their electronic presence.

Put another way, if a person sends a text message to a person who is driving, and the driver gets into a vehicle collision, can others involved in the incident sue the sender of the message for distracting the driver?

This civil claim stems from a 2009 traffic collision in Mine Hill, N.J., where Linda and David Kubert were riding their motorcycle when a pickup truck driven by Kyle Best, then 18 years old, hit them because he was reading a text message on his cellphone sent by Shannon Colonna.

The couple suffered serious permanent injuries and sued Best for damages, but also want to sue Colonna because she should have known that Best was driving at the time she was texting him and was distracting him.

The couple told ABC News, “They were texting back and forth like a verbal conversation. She may not have been physically present, but she was electronically present.”

The evidence shows that about 62 text messages were exchanged between Best and Colonna throughout the day, and hers was the last text message just before the collision.

The lawyer for the couple stated that Colonna should have been aware Best was driving and responding to her text while driving.

Colonna’s lawyer argues that there is no ground for Colonna to be part of the suit and has asked Morris County Superior Court Judge David Rand to dismiss charges against his client, as she owed no legal duty of care under the facts of the case. By the lawyer’s arguments, it’s up to the person receiving the text to answer it when they can do so safely and his client should not bear that responsibility.

On May 25, 2012, judge Rand has to decide if Colonna can be added to the list of defendants in the personal injury case.

According to legal experts across the U.S., the case has captured national attention because a decision favourable to the plaintiffs would push the limits of texting while driving laws to include conduct of people not even present in the vehicle.

I know my mind: Colonna acted foolishly and perhaps irresponsibly in sending Best the messages (and presumably expecting a timely response), whether or not she knew he was driving, but she did not act illegally. Ultimately, it is the driver’s choice whether to read and answer messages and phone calls while driving, and in this case Best failed that test. He could simply have ignored the messages, set his phone to “quiet” or turned it off if necessary. To cast the liability net so wide as to catch the sender of a distracting text message actually diminishes the driver’s responsibility to operate his or her vehicle in a safe manner.

Interestingly, New Jersey has a law in place that prohibits talking on a handheld cellphone and texting while driving. I’d have thought such a law would make the judge’s decision easy: the driver would have broken the law by simply reading his text messages while driving. The collision would be the driver’s fault, and it would be much more difficult to implicate the sender of the distracting message.

I guess we will just have to wait and see.

What do you think? Can a sender of a distracting text message be liable when the recipient gets into a vehicle collision? Is the sender “electronically present”?


  1. In my view, the question of ‘presence’ is misleading. The question is causation. One might cause an accident without being present in a number of ways. Suppose the remote person had drugged the driver or tampered with his motorcycle. In either case that person would fairly be held at least partly responsible for the accident.

    In this case the court or jury could fairly hold that the caller was partly responsible, since the course of conduct meant that it was reasonably foreseeable that the driver would engage with her text message while driving, just as he had done with the previous one, and the one before that. The driver was clearly also responsible, but it’s not obvious that he was 100% responsible.

    On different facts – where the caller/texter did not know where the recipient was or did not know that he was going to read or answer a message while driving, the caller/texter would not be liable. But it’s not the remoteness that makes that so; it’s the usual tort tests of causation and reasonable foreseeability.

    Perhaps David “Causation” Cheifetz has a more precise view…

  2. David Cheifetz

    Good alliteration. :-Þ

    It depends what we mean by legal responsibility in the particular case. While there is a legal answer in a particular case, the reason that that result is the answer, and some other result is not, is because we choose (or chose) to define the applicable law in one way and not another. The considerations involved in that choice, whatever they are, are outside of what we (in our version of system of law) (usually*) call legal considerations.

    As the SCC just repeated in R. v. Maybin, 2012 SCC 24 at para.16: “Legal causation, however, is a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility.”

    I’ll let you decide if there’s an adequate explanation of “sufficiently connected” in Maybin. You’d have to go back to the relevant discussion in R v. Nette, 2001 SCC 78, to begin to consider that question and you don’t want to do that until after you’ve reread both parts of Alice and solved the string theory equations approximating the number of angels able to dance on the head of a standard pin.

    Some theorists would claim that you’ve conflated causation and dependence in your first paragraph, but that discussion would also send us down a recursive rabbit-hole I’m desperately trying to climb out of.

    Definitions of causation, foreseeability, and remoteness in law are analagous to basic definitions in religion. Or, paraphrasing Humpty Dumpty, words mean what we say they mean, nothing less and nothing more.

    I’m not trying to be even more opaque than I’m sometimes accused of being. You’ve asked a question for which the “precise” answer is “whatever those of have the power to do so define the answer to be”. (Yes, I’m also paraphrasing H.D. there, too.)

    *Usually, because, to the extent judges make law – another rabbit-hole I’m not climbing into – those considerations become “legal” considerations.


  3. Well, that’s helpful – at least to point out that the line is not a bright one but rather a self-fulfilling one: ‘sufficiently connected to a harm to warrant legal responsibility’.

    Even in more by-the-book analysis, one has to detect some arguable causation in fact – could A’s action have had some effect on events such that B was injured. It seems to me that texting someone driving a motorcycle meets that test, if connected to the driver’s reading the text and replying to it. The whole sequence raises risk, and without A’s message, B is not injured.

    But for tort liability, A has to be able to foresee the harm to a reasonable extent. That’s where the course of conduct comes in, to apply fault to mere causation.

    I don’t think anything in this analysis requires physical presence as the scene of the accident to find either causation or liability. The court should not invent a category of ‘electronic presence’ – the law does not need it. That way lieth a can of worms.

  4. I don’t think anything in this analysis requires physical presence as the scene of the accident to find either causation or liability. The court should not invent a category of ‘electronic presence’ – the law does not need it.


  5. David Cheifetz


    I’ll provide what I think you’d accept as a precise answer to the question as you posed it, bearing in mind that I think your question is about legal responsibility, not merely factual causation. (If I’ve misread your question, let me know.)

    It’s what I’d consider a number of precise answer. I don’t think it provides an answer that’s any more useful than the concrete metaphysical answer I gave you, which amounts to saying that a cause in law is whatever law wants to call a cause. That’s because most of what follows is the same answer in different words.

    I gave you a quote from a criminal law case (because it’s an SCC case.) I could have given you a better quote from a tort case, even though it’s not an SCC case. It’s an HL case.

    Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 at para. 49, [2003] 1 AC 32:

    [49] Everyone agrees that there is no scientific or philosophical touchstone for determining the relevant causal connection in any particular case. The relevance of a causal connection depends upon the purpose of the inquiry.

    Anyway, enough philosophy (for now).

    If the situation under discussion occurred in common law Canada, odds are we’d find many judges saying that it was common sense that C’s act of sending text messages B was involved in the circumstances that resulted in B’s vehicle striking the plaintiff’s.

    If it occurred in BC, you’ll now see judges asking themselves whether there was a “substantial connection” between C’s conduct and the collision between the vehicles. (Blame Resurfice. Ask yourself this question, but don’t go to proximate cause (remoteness) doctrines because they’re not about whether something is or is not a factual cause: are there circumstances in which a necessary connection is NOT a “substantial” connection?)

    In some jurisdictions in the U.S. – I don’t know if NJ is one – the question would be whether C’s conduct was a “substantial factor” in the circumstances producing the collision.

    The consensus among most US tort scholars is that attempts to define factual causation by using terms such as “substantial” are “vacuous incantations” which conflate doctrines which define (limit) the extent of legal responsibility with the process of determining factual causation so that the legal responsibility decision may then be made. But, then, if factual causation in law is all about imposing responsibility, it’s not so much conflating – because that implies error the way the term is usually used – as failing to adequately define the various steps involved in the process of imposing liability.

    Precise enough?