Text sender could be civilly liable for N.J. wreck

Peggy Wright | (Morris County, N.J.) Daily Record

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TRENTON, N.J. — If you text a driver in New Jersey who gets in a crash, you could be held liable, according to a state appeals court panel.

Drivers still are obligated to obey traffic laws, not text or read messages while driving. But if a text's sender knows that the recipient will view it while driving, the sender could face civil damages, the court panel ruled Tuesday.

The novel issue of imposing a potential cause of action against a texter was raised by lawyer Stephen "Skippy" Weinstein, whose clients Linda and David Kubert both lost their left legs when a teenager hit their motorcycle Sept. 21, 2009. Kyle Best, then 19, was texting and driving in Mine Hill Township, N.J.

The Kuberts settled their lawsuit against Best of Wharton, N.J., but sued then-17-year-old Shannon Colonna of Rockaway, N.J., who was exchanging texts with Best as he drove.

"To summarize our conclusions, 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," the appeals court wrote.

"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," two of the three appellate court judges agreed in their opinion.

However, all three judges agreed that a Superior Court judge in Morris County was correct in 2012 when he dismissed lawsuit claims against Colonna, who was accused of "aiding and abetting" motorist Kyle Best by sending him a text that distracted his eyes from the road.

The appeals court found no evidence submitted that Colonna knew Best was driving or would read and respond to her text at the time he crashed into the Kuberts. Neither Colonna nor her lawyer, Joseph McGlone, could be reached for comment.

Weinstein said that he and the Kuberts applaud the appeals court for "carving out a new cause of action" against a remote sender of a text who can be perceived as "electronically present" in a vehicle with the recipient. Weinstein acknowledged that the burden would be on the plaintiff to show a texter had special knowledge that a recipient was driving and would read a text while doing so before liability could be found.

He said he is discussing with the Kuberts, who now live in Florida, the possibility of an appeal to the New Jersey Supreme Court for claims against Colonna to be reinstated.

Best and Colonna were close friends and exchanged 62 text messages on Sept. 21, 2009. Best punched out of work and immediately texted Colonna, who responded. Best had just retexted Colonna when he veered into the opposite side of the street and hit the Kuberts' motorcycle.

"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," the appeals court wrote. "However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time. The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction."