Sender of Text To Driver May be Liable for Accident?

Filed under: Personal Injury Tags: by Steven F. Fairlie @ May 20, 2012

We’ve all seen the signs on the road warning drivers of Pennsylvania’s newest distracted-driving ban: No texting while driving. While this law (and similar ones enacted in 37 other states) is easy enough to adhere to, a lawsuit in New Jersey is pushing the limits of these types of laws. The question at hand is: can someone be liable in a civil suit for texting the driver of a vehicle, possibly causing him to get into an accident?

That is the exact situation that Shannon Colonna is in right now. Colonna and Kyle Best, the 19 year-old driver, were engaged in a text conversation, when Best drifted into oncoming traffic and hit David and Linda Kubert’s motorcycle. As a result of the crash, both of the motorcycle riders lost their left legs. Stephen “Skippy” Weinstein, the Kuberts’ attorney, is now including Colonna in the complaint against the driver.

According to Weinstein, while Colonna was not physically present in the vehicle at the time of the accident, her ‘electronic presence’ was enough to make her liable in this situation. The pair exchanged more than two-dozen texts throughout the day, with a five hour gap in between while Best was at work and unable to answer his phone. According to Best, he was looking at his cell phone to see who texted him when he swerved into the opposing lane. Weinstein argues that Colonna should have known that Best was driving when he texted her back after not talking for so long, making her partially responsible for the accident. While Colonna says that she did not know if he was driving or not, she does admit that she “may have known.”

Unsurprisingly, Shannon Colonna’s attorney, Joseph McGlone, disagrees with her inclusion in the lawsuit. He argues that while a passenger can be held liable for encouraging the driver of a vehicle to drive faster than the speed limit, blow a red light, or commit other moving violations (presumably, texting while driving included), she cannot be considered liable in this instance, as she was not even in the car, and therefore had no control over the driver. In addition, citing the timestamps of the text conversation, he demonstrated that Best’s account of the incident was inaccurate: The cell phone records show that Best sent the last text, merely seconds before dialing 911 to report the accident. Therefore, it was his texting, and not the reading of her text, which caused the accident. Finally, McGlone argues that there is no relevant case law to support her inclusion in the lawsuit, and that her inclusion is completely arbitrary.

A ruling on the Motion to Dismiss is expected from Morris County Superior Court Judge David Rand on May 25.

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