A recent case in the state appeals court has texters of all ages thinking twice before hitting send on their cell phones, DUI/DWI attorneys in New Jersey say. The Appellate Court issued a controversial ruling that has sparked disagreement between lawmakers, judges, and attorneys over the responsibility a person has when texting another person who could potentially be driving at the time.
In September of 2009, Linda and David Kubert were out for a drive when a Chevy pickup crossed over to the wrong side of the road and sideswiped their motorcycle. David lost his left leg from the knee down in the crash, and Linda’s left leg was later amputated during surgery. Kyle Best, the truck’s eighteen-year-old driver, had received a text message on his cellphone just moments earlier, and he had taken his eyes off the road long enough to read and respond to the message. When he lost control of his truck, he crashed into the Kuberts’ vehicle and caused the tragic accident.
Following the crash, the Kuberts sued Best for damages due to his distracted driving. But they also filed a lawsuit against Best’s girlfriend, seventeen-year-old Shannon Colonna, for her part in the accident. Colonna had sent Best the text message he was reading when he hit the Kuberts. The lawsuit against Colonna went to the New Jersey appellate court, where the majority of the judges ruled that the teen could not be held responsible for Best’s actions when he received her text, because she was not present at the accident. In order to hold Colonna responsible, the court said, the Kuberts and their attorneys would have to offer evidence that she knew, or had a fair idea, that Best would be driving at the time, and would likely read the text while on the road.
But DUI/DWI lawyers in New Jersey say that this decision may be challenged by a few of the dissenting judges on the appellate panel, as well as those who, like the Kuberts, consider Colonna, as a texter, to be “electronically present” with drivers in their cars. Judge Victor Ashrafi wrote: “When a sender knows that the text will reach the driver while operating a vehicle, the sender has a relationship to the public who use the roadways similar to that of a passenger physically present in the vehicle…[and] must avoid distracting the driver.” Even if the texter is not present, he or she has a duty to keep from texting the driver if they fear they are placing other drivers in danger.
The appellate judges who agreed with this assessment compared the situation to a bartender or friend who allows someone about to drive to get drunk or keep drinking beyond the legal limit of safe vehicle operation. This liability is intended to keep drunk drivers off the road, and to impose a responsibility to others to keep the roads safe. But anticipating that a person is driving before sending a text is stretching the limits of responsibility over another’s actions, criminal lawyers in New Jersey say, and could become difficult to prove in court.
The DUI/DWI attorneys at New Jersey law firm Helmer, Conley, and Kasselman, PA, represent anyone who is being sued for damages or liability for a distracted driving accident such as texting and driving.