MONTANDON — As Werner Herzog and others have made abundantly clear, texting while driving is a stupid activity that could end in injury, death and/or criminal and civil liability for the texter. But what about the person on the other end of that text message? Do they share any responsibility for accidents that result from texting while driving? A recent decision out of a New Jersey appellate court argues that, sometimes, the answer is yes.
In 2009, a New Jersey teen-ager named Kyle Best was driving and texting when he veered into the opposite lane and collided with a motorcycle occupied by a married couple named David and Linda Kubert. The Kuberts, both of whom lost a leg, sued Best. (At the time, New Jersey state law did not include significant criminal penalties for causing an accident because of driving while texting.) But they also sued Shannon Colonna, a teen-age girl with whom Best had been texting at the time of the crash, claiming that she also bore some responsibility for the accident. The trial judge dismissed the Kuberts' claims against Colonna; the Kuberts appealed.
Last month, the appeals court issued its decision. The appeals court upheld the trial court's decision to dismiss the case against Shannon Colonna, saying that the Kuberts failed to prove that Colonna knew Best was driving a car during their text exchanges. But the appeals court also found that, in the abstract, the Kuberts' argument held some merit, and that "a person sending text messageshas a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving." Reasoning that an actual passenger in a car might be held liable for an accident if she urged a driver "to take his eyes off the road and to look at a distracting object," the appeals court applied similar logic to remotely texting an easily distractable driver:
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. 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.
Here are some local comments on the matter:
“I guess texting should be no more, since if you text someone while they're driving it’s all your fault. Who was the genius that came up with this?” — Carrie Gomez
“That’s idiotic. It’s easy to resist replying to a message when yourre behind the wheel, if you donst have self control and there is an accident as a result of that then it is purely your fault.” – Kassandra Runkle
“This is ridiculous....it would be laughable if it didn’t open up everyone in N.J. to potentially be sued for something they had nothing to do with.” – Brynne Clawser
“Then will a wife be charged with the murder of her husband if she shouts ‘Look!’ while he’s driving and in turn goes off the road and into an embankment killing him but only injuring her? Just another attempt to remove more responsibility and consequences. Pretty soon it will be everyone else’s fault when you do something wrong.” – Angelique Cochran William