Texting with knowledge or with reason to believe the recipient will view the text while driving can be the basis of liability for a car accident, a New Jersey appeals court ruled Tuesday in a case of first impression.
"The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction," the Appellate Division said while holding harmless the texter in the case at bar, Kubert v. Best.
The court saw no evidence that the texter had any reason to believe the recipient, who hit a motorcycle and caused serious injuries to the riders, was driving or would read the text while driving. "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, that is, when not operating a vehicle," the court said.
Despite dismissal of the claim, the plaintiffs' lawyer says he is pleased with the overall result — the first known instance in the country of a court finding a basis for texter liability for accidents.
"The appeals court ultimately came up with a new cause of action," says Stephen Weinstein, a Morristown solo.
He says lawyers involved in similar cases have been waiting to see how the court would rule.
Weinstein had argued that the texter, Shannon Colonna, then 17, was "electronically present" when the accident occurred on Sept. 21, 2009.
Kyle Best, then 19, driving his pickup truck on his way home from teaching a swim class at the West Morris YMCA in Randolph, had just received a text from Colonna when he lost control, crossed a yellow line and hit David and Linda Kubert on their motorcycle. David's left leg was torn off by the impact, while Linda's was left hanging and had to be amputated.
The Kuberts settled their claim against Best for his policy limit of $500,000, but continued to pursue a claim against Colonna, saying that she knew or should have known that Best was driving when she sent the text.
Best's subpoenaed cellphone records show he texted Colonna at 5:47:56 p.m., she responded at 5:48:23 p.m. and he replied at 5:49:07 p.m. His 9-1-1 call took place eight seconds later, at 5:49:15 p.m.
The Legislature, in response to that and other similar accidents, unanimously passed what is known as Kulesh, Kubert and Bolis' Law, which was signed by Gov. Chris Christie on July 18. It creates an inference that illegal use of a cellphone constitutes reckless driving and increases the penalty for talking on a hand-held phone or texting while driving from $100 to $200 for a first offense to as much as $600 and a 90-day license suspension for a third offense. The others for whom the bill was named were killed in accidents allegedly caused by the use of cellphones.
Appellate Judge Victor Ashrafi said the driver has the ultimate responsibility for avoiding distractions, such as text messages, while behind the wheel, but added that remote texters also have a relationship with the motoring public.
"[A] passenger must avoid distracting the driver," he said. "The remote sender of a text who knows the recipient is then driving must do the same.
"Finally, the public interest requires fair measures to deter dangerous texting while driving. Just as the public has learned the dangers of drinking and driving through a sustained campaign and enhanced criminal penalties and civil liability, the hazards of texting when on the road, or to someone who is on the road, may become part of the public consciousness when the liability of those involved matches the seriousness of the harm."
Appellate Division Judge Michael Guadagno joined in the ruling. Judge Marianne Espinosa wrote a concurring opinion, agreeing that Colonna should not be held liable but stopping short of agreeing that there could be a new cause of action against a remote texter, noting that the Legislature did not go that far.
Weinstein says no decision has been made as to whether to appeal that part of the ruling that upheld the dismissal of the claims against Colonna.
Colonna's lawyer, Joseph McGlone, of Morristown's McElroy, Deutsch, Mulvaney & Carpenter, did not return a call.