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- Posted: Fri, 10 May 2013 19:56:52 +0000
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Arguments in Morristown on whether text sender is liable if person receiving text crashes
In an issue that could have a major impact, a state appeals court panel heard arguments Monday in Morristown on whether a text sender can be held civilly liable if the message recipient crashes and causes harm to others while reading and driving.
A Superior Court judge in Morristown one year ago ruled that Shannon Colonna of Rockaway could not be held liable for aiding and abetting the conduct of Kyle Best, then 19, of Wharton, who got distracted while reading Colonna’s text and crashed and severely injured a couple on a motorcycle in Mine Hill.
David and Linda Kubert each lost a leg when Best, driving a pick-up, crashed into the Kuberts on their motorcycle on Sept. 21, 2009. The potential civil liability of Colonna, as a remote texter who wasn’t present in Best’s pick-up, is a novel issue that hasn’t been directly addressed in case law in New Jersey, except through now-retired Judge David Rand’s decision last year in Morristown.
Representing the Kuberts, attorney Stephen “Skippy” Weinstein urged the three-judge panel to send a message that text senders should have “a duty of care” to avoid sending messages if they know the intended recipient is driving and likely to check the communication.
“There are people getting slaughtered on the road because people are not listening...and sadly it’s young people,” Weinstein said.
Weinstein’s goal is to get Colonna, who was 17 when Best struck the Kuberts and had exchanged some 62 text messages with him in the hours before the crash, reinstated as a defendant in a lawsuit seeking damages for the Kuberts.
The three appellate judges -- Marianne Espinosa, Victor Ashrafi and Michael A. Guadagno -- had a lively debate with Weinstein and Colonna’s lawyer, Joseph McGlone, over the issue and after more than an hour of arguments over the case said they would issue a ruling in the future. Ashrafi noted that he is concerned with creating a legal duty of care for a text sender and under what circumstances.
“It’s going to apply to thousands of people who do this and send a text,” Ashrafi said.
While the appellate division may address when a text sender could be held liable for someone else’s distraction, if ever, McGlone argued that in the specific Kubert case, Colonna shouldn’t be held responsible for Best’s choice to read her text while driving.
“She cannot control when Kyle Best reads the message,” McGlone said. Guadagno shot back: “Other than not to send it to begin with if she knows he’s driving.”
Ashrafi pondered aloud if a text sender could be considered civilly negligent if he or she knows a recipient is driving and is in the habit of immediately reading messages. Ashrafi suggested it might be fair to impose a civil duty on a person who is aware of a recipient behind the wheel who reads messages promptly, but McGlone said the law that already makes it a motor vehicle violation to text and drive should be a sufficient deterrent.
The Kuberts, who have moved out of state, last year settled their lawsuit against Kyle Best for $500,000, the policy limit of the vehicle insurance on the pick-up he was driving. Best also pleaded guilty in Municipal Court last year to using a hand-held cellphone while driving. As part of his sentence, he was ordered to speak to 14 high schools about the dangers of driving and texting.
In an issue that could have a major impact, a state appeals court panel heard arguments Monday in Morristown on whether a text sender can be held civilly liable if the message recipient crashes and causes harm to others while reading and driving.
A Superior Court judge in Morristown one year ago ruled that Shannon Colonna of Rockaway could not be held liable for aiding and abetting the conduct of Kyle Best, then 19, of Wharton, who got distracted while reading Colonna’s text and crashed and severely injured a couple on a motorcycle in Mine Hill.
David and Linda Kubert each lost a leg when Best, driving a pick-up, crashed into the Kuberts on their motorcycle on Sept. 21, 2009. The potential civil liability of Colonna, as a remote texter who wasn’t present in Best’s pick-up, is a novel issue that hasn’t been directly addressed in case law in New Jersey, except through now-retired Judge David Rand’s decision last year in Morristown.
Representing the Kuberts, attorney Stephen “Skippy” Weinstein urged the three-judge panel to send a message that text senders should have “a duty of care” to avoid sending messages if they know the intended recipient is driving and likely to check the communication.
“There are people getting slaughtered on the road because people are not listening...and sadly it’s young people,” Weinstein said.
Weinstein’s goal is to get Colonna, who was 17 when Best struck the Kuberts and had exchanged some 62 text messages with him in the hours before the crash, reinstated as a defendant in a lawsuit seeking damages for the Kuberts.
The three appellate judges -- Marianne Espinosa, Victor Ashrafi and Michael A. Guadagno -- had a lively debate with Weinstein and Colonna’s lawyer, Joseph McGlone, over the issue and after more than an hour of arguments over the case said they would issue a ruling in the future. Ashrafi noted that he is concerned with creating a legal duty of care for a text sender and under what circumstances.
“It’s going to apply to thousands of people who do this and send a text,” Ashrafi said.
While the appellate division may address when a text sender could be held liable for someone else’s distraction, if ever, McGlone argued that in the specific Kubert case, Colonna shouldn’t be held responsible for Best’s choice to read her text while driving.
“She cannot control when Kyle Best reads the message,” McGlone said. Guadagno shot back: “Other than not to send it to begin with if she knows he’s driving.”
Ashrafi pondered aloud if a text sender could be considered civilly negligent if he or she knows a recipient is driving and is in the habit of immediately reading messages. Ashrafi suggested it might be fair to impose a civil duty on a person who is aware of a recipient behind the wheel who reads messages promptly, but McGlone said the law that already makes it a motor vehicle violation to text and drive should be a sufficient deterrent.
The Kuberts, who have moved out of state, last year settled their lawsuit against Kyle Best for $500,000, the policy limit of the vehicle insurance on the pick-up he was driving. Best also pleaded guilty in Municipal Court last year to using a hand-held cellphone while driving. As part of his sentence, he was ordered to speak to 14 high schools about the dangers of driving and texting.
