driving handOkay. You’ve read the hyperbolic hyperbole. Text someone while they’re driving and, if they have an accident, you’re liable. Right? At least that’s what the headlines said about this week’s court decision out of New Jersey. Like this one from CNN, “Text a driver in New Jersey, and you could see your day in court.” Hopefully, you’ve also had the time by now to review other commentary explaining that the hyperbolic headlines overstated the case a wee bit.

Nonetheless, the Appellate Division of the Superior Court of New Jersey, in a unanimous decision that included a separate concurring decision, did rule that, “when a texter knows or has special reason to know that the intended recipient [of the text] 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 driver a text at that time.” The concurrence agreed with the result–i.e., a texter could be liable for sending a text to person who the texter knew to be driving at the time–but based its decision on traditional tort law principles. Knowledge that a texter’s intended recipient is driving is a very high standard, and the Appellate Division ruled that it was not met on the facts of the case. In the future, though, I am sure this decision will lead to significant and invasive discovery fights. In fact, I can hear the plaintiff’s personal injury bar–correctly and reasonably, based on this decision–modifying their standard sets of interrogatories to include questions about texting as I type this post.

But what does this have to do with franchising, you may be wondering? My concern relates to the significant effort which is being waged against texting and driving in the United States. The fervor of this effort has begun to approach that of the effort against drinking and driving. In fact, as Werner Herzog’s haunting anti-texting and driving movie shows, even some of the same types of anti-drunk driving propaganda are being used against texting and driving. When the culture beings to turn against something in this way, with the law seemingly poised to follow, it becomes a significant liability concern. How many franchised businesses employ delivery drivers? And how many of those businesses communicate with their drivers via text? And, even more, how many of those drivers do you think are receiving texts while they are making deliveries? The intended recipient in the New Jersey case received an average of 80-90 texts a day., which TIME Magazine reported is about average for texters 18 to 29 years old. It is obvious that this is a potential, serious and growing area of liability for all businesses and, in particular franchise systems that make deliveries.