Texting a driver may lead to liability

A person who distracts a driver by sending him a text message conceivably could be held liable for injuries or deaths that result, a New Jersey appeals court has ruled.

Linda and David Kubert injured by distracted driverThe judges, however, rejected the application of its opinion in the case before them, saying the young defendant did not have a “special reason” to believe the driver would read the text while behind the wheel.

The civil case was brought by motorcyclists Linda and David Kubert (pictured), who both lost a left leg in a distracted driving crash in Mine Hill Township during the fall of 2009.

The couple are namesakes of New Jersey’s Kulesh, Kubert and Bolis Law, under which cell phone users causing serious harm can be prosecuted under criminal homicide or assault-by-vehicle laws.

In summer 2012, the couple settled their civil case against the distracted driver, Kyle Best, then 19, with the maximum $500,000 insurance settlement. But they had also sued Best’s friend and texting partner Shannon Colonna, 17 years old at the time. She was not in the vehicle and sent one text message to Best while he was driving home from work.

A trial judge in Morristown dismissed the claims against Colonna in Superior Court. The couple appealed.

The Aug. 27 ruling setting a limited standard of third-party liability in texting cases likely will be revisited by other state appellate divisions and possibly the state Supreme Court.

Update: In mid-November, the couple’s attorney announced that they would not appeal to the high court, partially because of concerns that the appellate decision could be overturned. /update

Both teens were heavy users of text messaging. Cell phone records showed that Best and Colonna texted each other 62 times on the day of the accident. The court agreed that the text likely was cause of the crash: “It can be inferred that he sent that text in response to Colonna’s text to him that he received 25 seconds earlier.” New Jersey prohibits texting while driving and use of handheld cell phones.

The plaintiffs contended that Colonna she was “electronically present” in Best’s pick-up truck immediately before the accident, and she “aided and abetted his unlawful use of his cell phone.”

The court said the sending of a text message to a driver would not lead to shared liability without special circumstances:

We do not hold that someone who texts to a person driving is liable for that person’s negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle. We hold that, when a texter knows or has special reason to know that the intended recipient 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 sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so,” Superior Court Appellate Division Judge Victor Ashrafi wrote in the Appellate Division of Superior Court decision.

Colonna told the court she texted more than 100 times per day. “I’m a young teenager,” she said. “That’s what we do.”

Colonna testified that she generally did not pay attention to whether the recipient of her texts was driving. She thought it was “weird” that plaintiffs’ attorney was trying to pin her down on whether she knew that Best was driving when she texted him.

The Kuberts’ attorney said they were disappointed in the three-judge court’s decision, but were “encouraged” that the ruling may benefit similar victims in the future.

The appellate court noted that the plaintiffs had not cited a case in New Jersey or any other jurisdiction with a third-party texting ruling, “and we have not found one in our own research.” Two of the three judges supported the decision.

A New Jersey assemblywoman from Monmouth County says she’ll introduce legislation that would bar liability claims against people who text drivers.

The lawmaker, Caroline Casagrande, said: “This legislation puts the responsibility where it belongs — in the front seat with the driver.”

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