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Ruling Tomorrow Could Set Precedent for Suing People Texting to Drivers

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Dave and Linda Kubert

David and Linda Kubert, who lost their left legs after a texting driver crashed into them as they rode their motorcycle.

A Morris County, NJ, judge is expected to decide tomorrow if a texting teen can be sued for a serious accident caused by her boyfriend as he texted with her while driving. In what is believed to be the first of its kind, this case could set a precedent allowing texting drivers to be sued for accidents caused by the recipients of their texts.

As Peggy Wright reports in the Morris County Daily Record, the lawsuit was filed by Dover, NJ, residents David and Linda Kubert after then-19-year-old Kyle Best’s vehicle (a pick-up truck, according to David Moye writing in The Huffington Post) crossed into the opposite lane while he was behind the wheel with his eyes off the road and crashed into the couple as they were riding their motorcycle. The accident occurred on September 21, 2009. The Kuberts both lost their left legs in the crash, Moye writes.

Best said in a deposition that right before the crash he glanced at his cell phone to see who had just texted him, Wright writes. The text was from his girlfriend, Shannon Colonna, then 19. The Kuberts’ lawyer, Stephen “Skippy” Weinstein, who was first suing only Best, amended the lawsuit to include Colonna “as a party who aided and abetted Best’s negligence by texting him when she knew or should have known he was driving,” Wright writes.

Colonna’s lawyer, Joseph McGlone, asked Morris County Superior Court Judge David Rand last Friday to dismiss Colonna from the suit saying she owed no legal “duty of care” under the facts of the case, according to the Daily Record.

As Wright writes:

‘The sender of the text has the right to assume the recipient will read it at a safe time,’ McGlone argued. He said there is no court ruling anywhere in the country that says a text-sender is liable if the receiver causes injury while reading the message.

‘It’s not fair. It’s not reasonable. Shannon Colonna has no way to control when Kyle Best is going to read that message,’ McGlone said.

Colonna said in a deposition that she didn’t know whether Best was driving when she texted him on Sept. 21, 2009, but also said she ‘may have known.’ Weinstein said lawsuit discovery shows the pair exchanged more than two dozen texts during the day and he argued that Colonna should have been aware Best was driving when he resumed texting her after staying off the phone about five hours while he worked.

Although Best said in a deposition that right before the crash he glanced down at his cell to see who had texted him, Wright reports, a time sequence read in court of the exchanged texts between Best and Colonna shows that Best was the last to text before the crash. McGlone argued that case law does not support the “duty of care” in Weinstein’s case because Colonna had no control over Best’s conduct because she was not in his car. Wright reports that Weinstein rebutted: “She may not have been physically present but she was electronically present.”

Nina Mandell writes in the New York Daily News that earlier this year Best pleaded guilty to three motor vehicle summonses from the crash: using a hand-held cellphone while driving, careless driving, and failure to maintain a lane, according to the Daily Record, and was sentenced to pay $775 in fines and to speak at 14 local high schools about the dangers of texting while driving.

But the Kuberts, who are suing Best, Mandell writes, want Colonna to pay a price too:

‘I think any reasonable jury can determine that she had knowledge that when he text her and he said ‘I’m back’ she knew he was driving home for dinner because she spent the day with him,’ Weinstein said.

He compared her actions to someone who enables someone to drive drunk. […]

Weinstein said his clients want the insurance company to pay up for their medical costs — and for the New Jersey legislature to pass a law discouraging texting while friends are driving.

‘Their main focus is to get some law passed to prevent this and make it strict that you don’t text someone while driving,’ he said.

Including New Jersey, as Linda Yvkoff writes for CNET, most states already have “some variation” of a law that bans texting while driving, especially for teens. She continues:

And yet they still do it anyway. A recent Consumer Reports survey found that despite knowing the dangers of distracted driving, half of teens admit to talking on the phone while driving, and almost 30 percent say they still text behind the wheel. New Jersey reported 3,351 motor vehicle crashes by drivers using mobile phones, of which 1,019 resulted in injury in 2010, according to the Asbury Park Press.

The rate of accidents despite the state’s anti-distracted-driving laws makes the proposed federal ban seem redundant, and most likely ineffective. But perhaps the threat of liability for parties on both ends of the communications can stop what tickets and traffic violations can’t. If drivers find a lot fewer willing to text with them, that may solve the problem all together.

Image by FocusDriven: Advocates for Cell-Free Driving, used under Fair Use: Reporting.


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