concurring.
I concur in the result we reach today. I also observe that the bar set by the majority for the imposition of liability is high and will rarely be met since the duty created arises when the conduct of a person, not in an automobile, interferes with the driver’s operation of the vehicle. Still, I do not agree that it is necessary for us to articulate a new duty specific to persons in remote locations who send text messages to drivers, and I part company with my colleagues in their analysis of the duty imposed. In my view, traditional tort principles provide adequate guidance to determine whether liability should be imposed in such circumstances.
“Traditional tort theory emphasizes individual liability, which is to say that each particular defendant who is to be charged with responsibility must be proceeding negligently.” Podias, supra, 394 N.J.Super. at 346, 926 A.2d 859. As we have noted, the driver carries the personal responsibility to obey traffic laws and exercise appropriate care for the safety of others, (op. at 516-17, 75 A.3d at *5211227) . This responsibility includes the obligation to avoid or ignore distractions created by other persons, whether in the automobile or at a remote location, that impair the driver’s ability to exercise appropriate care for the safety of others. Text messages received while driving plainly constitute a distraction the driver must ignore.1
The majority finds, “[w]hen the sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle.” (op. at 517, 75 A.3d at 1228) . The premise for this holding is that knowledge a text message will “reach the driver while operating a vehicle,” without more, places the remote texter in a position equivalent to that of a passenger in the vehicle. The equation of these positions is Procrustean in nature, however, because a person who is not present in the automobile lacks the first-hand knowledge of the circumstances attendant to the driver’s operation of the vehicle that a passenger possesses and has even less ability to control the actions of the driver. Still, the analysis applicable to passenger liability is helpful.
Passenger liability was at issue in two of the cases discussed in the majority opinion, Champion, supra, 398 N.J.Super. 112, 939 A.2d 825, and Podias, supra, 394 N.J.Super. 338, 926 A.2d 859. *522Both cases concerned a passenger’s failure to prevent the driver from engaging in conduct that posed a risk of harm to another.
In Champion, supra, the plaintiff, a passenger, alleged that the driver’s girlfriend, a fellow passenger, was negligent in failing to prevent the visibly intoxicated driver from operating his own automobile. We disapproved an extension of principles that would impose “a new duty on anyone beyond those in control and operation of the vehicle.” 398 N.J.Super. at 120, 939 A.2d 825 (citing Lombardo, supra, 269 N.J.Super. at 48, 634 A.2d 550). We recognized two exceptions to the rule of passenger non-liability, i.e., when a special relationship exists between the passenger and driver that affords the passenger “some control over the driver,” as embodied in Restatement (Second) of Torts § 315 (1965),2 Champion, supra, 398 N.J.Super. at 121, 939 A.2d 825, and when “the passenger substantially encourages or assists in the driver’s tortious conduct.” Id. at 122, 939 A.2d 825 (citing Restatement (Second) of Torts § 876 (1979)).
As the majority opinion notes, the type of “special relationship,” such as parent-child, master-servant, landlord-tenant, and guardian-ward, required to impose liability for the conduct of another under section 315 of the Restatement, ibid., was not present here, (op. at 511-13, 75 A.3d at 1224-25).
To prevail on the “aiding and abetting” theory based on section 876 of the Restatement, the plaintiff must prove three elements: “(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant *523must knowingly and substantially assist the principal violation.” Tarr, supra, 181 N.J. at 84, 853 A.2d 921.
As to the last of these factors, the comments to section 876 note that “[t]he assistance of or participation by the defendant may be so slight that he is not liable for the act of the other.” Restatement (Second) of Torts § 876(b) cmt. d. (1979). To assist in determining whether a defendant provided “substantial assistance,” the comments list five factors to be considered: “the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind.” Ibid.; see also Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 127 n. 27 (3d Cir.1999) (noting the addition of a sixth relevant factor, the duration of the assistance provided, by the D.C. Circuit in Halberstam v. Welch, 705 F.2d 472, 484 (D.C.Cir.1983)), cert. denied, 528 U.S. 1074, 120 S.Ct. 786, 145 L.Ed.2d 663 (2000); Podias, supra, 394 N.J.Super. at 353, 926 A.2d 859.
When the tort is the driver’s use of text messaging, it is evident that at least one of the factors — the remote texter’s absence from the location of the tort — will weigh against liability. The driver requires no assistance from the remote texter to commit this tort and so, a determination of potential liability will depend largely on whether the remote texter provided the level of “active and purposeful conduct” that is required for aiding-and-abetting liability to be imposed. Tarr, supra, 181 N.J. at 83, 853 A.2d 921.
In Champion, supra, we cited cases that illustrated examples of such active encouragement, such as where the passenger encouraged the driver to ignore applicable traffic laws or provided intoxicants to the driver to consume while driving. 398 N.J.Super. at 122-23, 939 A.2d 825. In each example, the passenger’s presence in the automobile provided an awareness of the circumstances that contributed to the risk created by the driver’s conduct. E.g. Cooper v. Bondoni, 841 P.2d 608, 611-12 (Okla.Civ.App.1992) (minor passengers gave substantial assistance and encouragement to minor driver’s negligent operation of his vehicle *524where they provided him with alcoholic beverages and urged him to pass a truck while climbing a hill in a no-passing zone), cert. denied (Okla.1992). However, mere presence and participation in the same activity that gave rise to the driver’s liability, such as drinking alcohol in the car, were insufficient to constitute the substantial encouragement required for the imposition of liability. Champion, supra, 398 N.J.Super. at 123-24, 939 A.2d 825; see also Podias, supra, 394 N.J.Super. at 353, 926 A.2d 859 (noting that “ ‘aiding-abetting’ focuses on whether a defendant knowingly gave ‘substantial assistance’ to someone engaged in wrongful conduct, not on whether the defendant agreed to join the wrongful conduct”).
In contrast to Champion, where the passenger’s conduct can be considered mere acquiescence to the driver’s tortious conduct, the circumstances and conduct of the passengers in Podias provided a basis for the imposition of liability where passengers urged the driver to leave a hit-and-run victim lying on the Garden State Parkway in the middle of the night and failed to call for any assistance for the victim. We stated, “the degree of defendants’ involvement, coupled with the serious peril threatening imminent death to another that might have been avoided with little effort and inconvenience ... creates a sufficient relation to impose a duty of action.” Id. at 356, 926 A.2d 859. Still, we stressed the “narrowness of the issue before us” and stated, “[w]e formulate today no rule of general application.” Id. at 355, 926 A.2d 859.
Just as it was unnecessary to formulate a new rule in Podias, we need not create a new duty here. Traditional tort principles provide adequate guidance for our analysis and, indeed, provide the framework for the majority opinion.
There was no special relationship that provided Colonna with the means to control Best’s conduct. Therefore, the exception to the general rule that one has no duty to prevent the tortious conduct of another embodied in section 315 of the Restatement does not apply.
*525Consideration of the factors relevant to an aiding and abetting analysis in this case also supports our conclusion that the evidence was insufficient to impose liability upon Colonna for aiding and abetting Best’s negligent conduct. Specifically, there was no evidence that Colonna was “generally aware of [her] role as part of an overall illegal or tortious activity at the time that” she texted Best. See Tarr, supra, 181 N.J. at 84, 853 A.2d 921. Turning to the factors relevant to a determination whether Colonna “knowingly and substantially assisted] the principal violation,” see ibid., the act she purportedly encouraged was Best’s text messaging while driving. She was not physically present at the place of the principal violation and her remote location afforded her limited, if any, knowledge of the circumstances of Best’s text messaging. Her “assistance” consisted of receiving several text messages and sending one in reply before the accident. The evidence regarding her state of mind fails to reveal any intention to assist Best in committing a tortious act. Even assuming that Colonna knew Best was driving, her conduct in sending a text under the circumstances here amounted to that of a companion who merely participated in the same activity and who did not actively encourage Best to ignore applicable law and safety hazards.
The implications of creating a new duty are that existing principles fail to address the issue and that liability could be imposed under circumstances that would not provide a basis for doing so under existing law. Because traditional tort principles provide a sufficient measure for assessing the liability of a person who sends a text message to a driver, I see no reason to establish a new standard for such conduct, particularly when the record before us does not support the imposition of liability upon the remote texter.
The dangers associated with text messaging while driving, and the devastating consequences in this case, were known to the Legislature. We have nothing before us that reflects whether the Legislature considered legislation that would have imposed either civil liability or criminal penalties for a remote texter who sends a *526distracting text message to a driver. What we do know is that the legislative response was to amend the assault by auto statute, N.J.S.A. 2C:12—1(c)(1), to permit the jury to infer that a defendant who unlawfully used a cell phone while driving “was driving recklessly.” See “Kulesh’s, Kuberts’ and Bolis’ Law,” L. 2012, c. 22. The effect of the amendment was to codify a permissive inference that the jury could have drawn prior to its enactment. Both before and after the amendment, recklessness was an essential element of N.J.S.A. 2C:12-1(e)(1) and the grading of the conduct as either a fourth-degree offense or a disorderly persons offense turned on the degree of injury, not on whether a cell phone was in use. In short, the legislative response was measured, even as to the driver, and did not include any action as to the remote texter.
Therefore, I concur in the result reached, but not in the analysis of the majority opinion.
Studies have indicated that distracted driving — which includes using a cell phone or a navigation system, eating, and drinking coffee — is a factor in approximately one-fifth of motor vehicle accidents involving personal injury. The Centers for Disease Control and Prevention reported that 18% of all motor vehicle accidents in 2010 in which someone was injured involved distracted driving. Injury Prevention & Control: Motor Vehicle Safety, Centers for Disease Control and Prevention, www.cdc.gov/motorvehiclesafety/distracted_driving (last visited August 20, 2013). The National Highway Traffic Safety Administration also reported that driver distraction was a factor in 16% of all fatal crashes in 2008 and in 21% of all crashes involving personal injury. Traffic Safety Facts, National Highway Traffic Safety Administration, www.nhtsa.gov/Research/ Crash+Avoidance/51fci.Distraction.print (follow "Traffic Safety Facts — Research Note: An examination of Driver Distraction as Recorded in NHTSA Databases, September 2009” hyperlink) (last visited August 20, 2013).
Section 315 provides, in part:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.
[Restatement (Second) of Torts § 315 (1965).]