Texting while driving creates a grave risk for those who use the roadways. Forty-one states and the District of Columbia ban text messaging for all drivers. Although public policy mandates a reduction in texting while driving, arguably this is a duty that should fall on drivers. However, New Jersey does not stop there. In Kubert v. Best, the Superior Court of New Jersey, Appellate Division, considered whether seventeen-year-old Shannon Colonna was liable when the person she was texting lost control of his car and severely injured a motorcyclist and his passenger. Although Colonna was not found liable, the court held “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.”

This Note examines Kubert in regard to the new duty imposed upon remote texters not to text the driver of a motor vehicle and argues it was unnecessary for the court to formulate such a duty. The duty to avoid texting while driving should fall solely on the driver because remote texters have no knowledge of the circumstances of the recipient of a text message. This Note argues that the duty created will rarely, if ever, be met, and the court did little more than create a useless duty of care.