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Texting someone who is driving could get you sued and possibly arrested. Options · View
lafayettemister
Posted: Thursday, August 29, 2013 8:07:57 AM

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Send a text to a driver and you could be sued

CNN) -- We've all heard the dictum: Don't text and drive. Now, a New Jersey state appeals court has an addendum: Don't text a driver -- or you could be held liable if he causes a crash.


Kyle Best was behind the wheel of his pickup in September 2009 driving down a rural highway, when Shannon Colonna sent him a text.
The two were teens at the time. He was 18; she was 17, and they were dating. They sent each other 62 texts that day, according to court documents.

In the opposing lane of traffic, David Kubert was cruising along on a big, blue touring motorcycle with his wife Linda along for the ride. They approached Best at exactly the wrong time.

The texts

A court summary of the times of texts and calls to and from Best's cell phone reflect what happened next:

The teens were having a text chat, volleying each other messages every few moments.

Seventeen seconds after Best sent a text, he was calling a 911 operator.

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His truck had drifted across the double center line and hit the Kuberts head-on.

The scene Best described to the emergency operator was most certainly gruesome.

"The collision severed, or nearly severed David's left leg. It shattered Linda's left leg, leaving her fractured thighbone protruding out of the skin as she lay injured in the road," the court document said.

Best hung up. Colonna texted him two more times.

The court did not publish the contents of their messages.

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The lawsuit

The Kuberts both lost their legs. They sued.

But they didn't just go after Best. They included Colonna in the lawsuit.

In their minds, she was distracting him and was also responsible for their pain and loss.

They settled with Best and lost against Colonna, but they appealed that decision.

The plaintiffs' attorney, Stephen Weinstein, argued that the text sender was electronically in the car with the driver receiving the text and should be treated like someone sitting next to him willfully causing a distraction, legal analyst Marc Saperstein told CNN affiliate WPIX.

The argument seemed to work.

The ruling

On Tuesday, three appeals court judges agreed with it -- in principle.

They ruled that if the sender of text messages knows that the recipient is driving and texting at the same time, a court may hold the sender responsible for distraction and hold her liable for the accident.

"We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted," the court said.

But the judges let Colonna off the hook.

She had a habit of sending more than 100 texts a day and was oblivious to whether recipients were driving or not.

"I'm a young teenager. That's what we do," she said in her deposition before the original trial.

Since she was unaware that Best was texting while driving, she bore no responsibility, the court decided.

"In this appeal, we must also decide whether plaintiffs have shown sufficient evidence to defeat summary judgment in favor of the remote texter. We conclude they have not," it said.


The reaction

During the trial, Colonna, now 21, found it "weird" that the plaintiffs' tried to nail down whether she knew Best was texting behind the wheel, the court document said.

The judges' decision has elicited a similar response from the state's governor Chris Christie.

The driver is ultimately responsible, he said. Not someone sending him a text.

"You have the obligation to keep your eyes on the road, your hands on the wheel and pay attention to what you're doing," he told radio station New Jersey 101.5.
Other New Jerseyites agreed.

"That's completely absurd, just because you know you're driving doesn't mean, it really doesn't mean they know you're looking at it," Joe Applegate told CNN affiliate WPIX.

"Even talking to the driver can distract them, so they are going to arrest for someone who simply talked to someone who is driving?" asked Louise McKellip.

The future

New Jersey has been cracking down hard on texting and driving in recent years, implementing new laws and regulations that treat it in a similar manner as drunk driving, if it involves an injury accident.

The state passed a law last year based on the fate of the Kuberts' and others who had been killed or maimed by texting motorists.

The Kulesh, Kubert and Bolish Law makes distracted driving a crime, if the driver causes an accident. Fines for bodily injury run as high as $150,000, and the driver can go to jail for up to 10 years.

And new legislation proposed by state Sen. James Holzapfel would let cops thumb through cellphones if they have "reasonable grounds" to believe that the driver was talking or texting when the wreck occurred.

The bill has set off alarm bells with the American Civil Liberties Union of New Jersey.

====================

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Ardentmale
Posted: Thursday, August 29, 2013 9:53:53 AM

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I think Jersey lawyers try to stretch things way to far, especially in the civil world, looking for another pocket to fleece... In my opinion, It is ultimately the driver's responsibility to look at a text or not... Should we not send a text to begin with if we are not sure if they are driving or not? Or call them for that matter too? It comes down to personal responsibility, which many here do not take anymore... Everything is someone else's fault... As far as access to someone's text messages... I think that is an invasion of ones privacy and there is a definite need to have very strict guidelines on when the police can look through a person's phone...

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Jack_42
Posted: Thursday, August 29, 2013 9:58:08 AM

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As an ex mobile phone operator I feel that the ultimate responsibility is the recipient's He or she should be nowhere near a mobile phone whilst driving in fact in the UK it is against the law to hold a phone whilst driving anyway so how could it be the sender's fault? If it is legal in the USA to hold a phone whilst driving I am very surprised.
sprite
Posted: Thursday, August 29, 2013 10:00:36 AM

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so... should we call the person first to ask if they are driving so we know whether or not to send them a text? *scratches head*

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BlondeBookworm
Posted: Thursday, August 29, 2013 10:10:45 AM

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I think that it's a little sad our society these days has trouble staying off electronics long enough to make it to their destination in the car. I know that I am not capable of texting while I drive, I have to pick one or the other, I'm either going to pull over and talk on the phone or avoid picking it up and keep driving. I get so pissed when someone pulls out in front of me or cuts me off and I look at them to find they are texting or talking on the phone. People my age are constantly on their electronics, it's like an addiction, but is it really okay to use the excuse of "I'm a young teenager. It's what we do."? At some point you have to take responsibility for the fact that when you are driving you need to be careful because a fatal accident like this one can happen at any minute when a teenager takes their eyes off the road to text.

I don't think that it's fair to charge the person that's texting unless the driver has told them they are driving. I mean, for all Colonna knew, her boyfriend could have been at home watching TV. I think that awareness has become more prominent, there's commercials all the time on TV saying that texting can wait. I agree with Chris Christie on this one, it's the drivers responsibility.
Ardentmale
Posted: Thursday, August 29, 2013 10:38:28 AM

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Jack_42 wrote:
As an ex mobile phone operator I feel that the ultimate responsibility is the recipient's He or she should be nowhere near a mobile phone whilst driving in fact in the UK it is against the law to hold a phone whilst driving anyway so how could it be the sender's fault? If it is legal in the USA to hold a phone whilst driving I am very surprised.


It is illegal in NJ, as well as most if not all of the US to use a wireless handheld device while driving... I have to say though many teenagers are certainly guilty of using devices while driving, many many adults (30s,40s,50s and up) are just as bad if not worse than teens...

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Icarus32
Posted: Thursday, August 29, 2013 11:23:23 AM

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It's illegal to text and drive or talk on the phone and drive (provided it isn't hands free) in Canada

That said I'm glad I live in Canada, I'm always hearing stories about stupid court cases like this from south of us.
SatinBatty
Posted: Thursday, August 29, 2013 11:23:25 AM

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Not surprised in this "I'm gonna sue you " world we live in. While they were at it, why didn't they sue both sets of parents for conceiving such distractable kids? I shouldn't be at fault for sending a text to someone who then gets into an accident
Rembacher
Posted: Thursday, August 29, 2013 11:47:30 AM

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Definitely odd. I've sent plenty of texts to people who I knew were driving. I had something to say, or remind them of, that I didn't want to forget. The beauty of a text message is that the recipient does not have to respond, or even read the text, until they are free to do so. Holding me liable for the risky behaviour of someone else definitely seems like a reach.
martb40
Posted: Friday, August 30, 2013 6:30:52 AM

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I'd like to see that law stand up in court. Firstly, you don't know that the person you're texting is driving unless they actually text you back to say so. Secondly, if you try to charge someone who texts a driver with causing an accident then they'll also have to text the guy walking his dog when it steps towards the street or the girl wearing a cute outfit. or the guy in the string t-shirt or anyone who is a distraction. Remember that people are distracted by different things and any driver would be able to use that as a defense any time there was an accident. Of the guy on the radio said 'damn'. However ridiculous it seems, it's opening the door to abuse. Just another possible law that hasn't been thought through.
MadMartigan
Posted: Friday, August 30, 2013 6:40:24 AM

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Er, the fuck?

I honestly have no sympathy for ANYONE who texts and drives. Zero, Zip, Nada.

However, taking the person who sent the text to the person driving is fucking hilarious.

Are we all mind-readers now that we know exactly what our friends and family and doing at any point of any day?

This seems frivolous and useless as hell. And good lucky proving someone knowingly texted someone who was driving. d'oh!
Milly
Posted: Friday, August 30, 2013 10:39:26 AM

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I agree that the responsibility lies with the person driving the vehicle - they should have their mobile phones switched off.

I also lack sympathy for anyone in an accident caused because they were yakking away on their mobile phones. There really is no need/any excuse for it.

overmykneenow
Posted: Friday, August 30, 2013 11:39:30 AM

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Quote:
We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted


This is a stretch but it's the same logic used in the argument that if you give a drunk a set of car keys you're just as liable if they end up driving into someone and killing them.*

The burden of proof is firmly on the Plaintiff in this case - they have to prove that she willingly sent texts in full knowledge that he was driving and that he wouldn't stop to read what she had sent. While that may be difficult or even impossible to prove, POTENTIALLY she is an accomplice to his negligence.

*This case and the concept of being an accomplice to negligence is discussed here: New Hampshire Bar Association Journal

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1ball
Posted: Friday, August 30, 2013 12:12:22 PM

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Jack_42 wrote:
If it is legal in the USA to hold a phone whilst driving I am very surprised.


These things are handled on a state-by-state basis in the US. I would be surprised if the EU had a policy this intrusive in the sovereign territories within it.

I often receive texts while driving and I glance at them to see if they are too long to safely read while driving. I don't send texts until I can do so safely. But the question here is where reasonable ends and nanny statism starts. You can glance at a map or a GPS, but not a cell phone? You can light a cigarette or punch radio buttons or drink or eat or talk with a passenger, but not talk on the phone? You can mount a phone on the dash but not hold it to your ear? Some of these things help you stay awake. I've seen people reading novels while they're in stop-n-go traffic. I've seen women putting on mascara while driving at 70 mph. Ultimately it's the driver who is the pilot-in-command. Unless the prosecutor can prove an intent to distract (and even that is shaky), the remote texter should be blameless.

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