Gene363
  • Gene363
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14 years ago
Sending a text message to a driver involved in a crash may make you partially liable for the accident.

"Text Sender Sued for Allegedly Causing Driver to Crash, a New Jersey judge will rule this month whether a woman who sent a text message to the driver of a pick-up truck is partially liable for his subsequent crash into a couple riding a motorcycle.

The case stems from a 2009 accident when a then 19-year-old Kyle Best got into an accident while texting. Best was driving his pick-up truck and replying to a text he had just received from Shannon Colonna when his vehicle drifted into opposing traffic and slammed into David and Linda Kubert’s motorcycle.

The couple’s injuries were horrific with David Kubert losing his left leg above the knee during the accident and Linda Kubert having her leg later amputated below the knee as a result of her injuries.

After initially bringing a suit against Best for his role in the accident, the Kuberts’ lawyer, Stephen Weinstein, expanded the complaint to include Colonna as well."


http://abclocal.go.com/wpvi/story?section=news/local&id=8649730 

http://www.kmtv.com/153288605.html 

http://abcnews.go.com/blogs/headlines/2012/05/text-sender-sued-for-allegedly-causing-driver-to-crash/ 
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z6joker9
14 years ago
If the chick is held liable, it's because she was texting while knowing full well that he was driving at the time. But it's unlikely to hold IMO.
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rfenst
14 years ago

"superseding intervening act"
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Gene363
  • Gene363
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14 years ago

"superseding intervening act"

rfenst wrote:




I would think the plaintiff's lawyer would subpoena copies of the text messages to see if the person texting the driver was aware they were driving. In this case the other person knew the drive was driving.

"After initially bringing a suit against Best for his role in the accident, the Kuberts’ lawyer, Stephen Weinstein, expanded the complaint to include Colonna as well.

“They were texting back and forth like a verbal conversation,” Weinstein told ABCNews.com. “She may not have been physically present, but she was electronically present.”

Weinstein says that Colonna should have known that Best was driving from work as she texted him since they had been corresponding for much of the day and she knew his schedule. Weinstein compared Colonna’s actions to that of a passenger who enables a drunk driver to break traffic violations."


Even if she ends up with no liability she has been forced, in some degree, to answer for her actions; getting sued is not fun.
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akfireguy
14 years ago
Let me paint you a picture...here in AK. Guys runs a red, texting at about 60... Hits little girl on bike. Predictable trauma and distance on the child's body. Weak laws up here he does not get charged with a texting crime. Yours truly gets to have nightmares about initial call then gettig to go back and use platform to raise officers up to take pics of 12 hear old body, 120 feet from where she was hit.
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Gene363
  • Gene363
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14 years ago

Let me paint you a picture...here in AK. Guys runs a red, texting at about 60... Hits little girl on bike. Predictable trauma and distance on the child's body. Weak laws up here he does not get charged with a texting crime. Yours truly gets to have nightmares about initial call then gettig to go back and use platform to raise officers up to take pics of 12 hear old body, 120 feet from where she was hit.

akfireguy wrote:



Wow, I can only hope those images fade with time.

Tougher laws will help and it make take the equivalent of MADD for society to tell drivers they must drive with 100% attention.
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z6joker9
14 years ago
Not sure 100% attention is possible in any case.

If its not texting, it's calling, the radio, gps, other passengers, reading books and newspapers, thinking about something else, etc.

Thankfully, phone and car companies are jumping in to solve the problem- text to speech and speech to text is getting better and better.

But people will always try to distract themselves with something. Take solace that accidents and fatalities go down every year in spite of these new distractions.
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rfenst
14 years ago

Not sure 100% attention is possible in any case.

If its not texting, it's calling, the radio, gps, other passengers, reading books and newspapers, thinking about something else, etc.

Thankfully, phone and car companies are jumping in to solve the problem- text to speech and speech to text is getting better and better.

But people will always try to distract themselves with something. Take solace that accidents and fatalities go down every year in spite of these new distractions.

z6joker9 wrote:




Merely speaking on a cell while driving, even hands free poses the same level of danger as one who is under the influence of alcohol.
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Gene363
  • Gene363
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14 years ago

Not sure 100% attention is possible in any case.

If its not texting, it's calling, the radio, gps, other passengers, reading books and newspapers, thinking about something else, etc.

Thankfully, phone and car companies are jumping in to solve the problem- text to speech and speech to text is getting better and better.

But people will always try to distract themselves with something. Take solace that accidents and fatalities go down every year in spite of these new distractions.

z6joker9 wrote:



True and you can include eating, drinking and smoking.

http://www-fars.nhtsa.dot.gov/Main/index.aspx 

Accident rates do have a downward trend however motorcyclists and pedestrians are not doing as well.
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Gene363
  • Gene363
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14 years ago

Merely speaking on a cell while driving, even hands free poses the same level of danger as one who is under the influence of alcohol.

rfenst wrote:



True and the Mythbusters also agree with you as well.
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Stinkdyr
14 years ago
Hang up and drive.

🌫
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rfenst
14 years ago
NJ judge: Texter not liable for driver's crash

MORRISTOWN, N.J. (AP) — A woman who texted her boyfriend while he was driving cannot be held liable for a car crash he caused while responding, seriously injuring a motorcycling couple, a judge ruled Friday in what is believed to be the first case of its kind in the country.

A lawyer for the injured couple argued that text messages from Shannon Colonna to Kyle Best played a role in the September 2009 wreck in Mine Hill. But Colonna's lawyer argued she had no control over when or how Best would read and respond to the message.

State Superior Court Judge David Rand agreed with Colonna's lawyer, dismissing claims against the woman in a lawsuit filed by crash victims David and Linda Kubert, who are also suing Best. David Kubert had his left leg torn off above the knee, while his wife eventually had her left leg amputated.

Stephen Weinstein, the Kuberts' attorney, has argued that Colonna should have known Best was driving and texting him at the time. He argued that while Colonna was not physically present at the wreck, she was "electronically present" and asked for a jury to decide Colonna's liability in the case.

But Colonna testified at a deposition she didn't know whether Best was driving at the time.

Best has pleaded guilty to distracted driving, admitting he was using his cellphone and acknowledging a series of text messages he exchanged with Colonna around the time of the accident; the content of the messages is unknown. Records show Best responded to a text from Colonna seconds before dialing 911.

Best was ordered to speak to 14 high schools about the dangers of texting and driving and had to pay about $775 in fines, but his driver's license was not suspended.

Lawyers for Best and Colonna declined to comment after the hearing, and neither couple was in court. Weinstein was also absent, but he was expected to give a statement Friday afternoon.

Rand said it's reasonable for text message senders to assume the recipients will behave responsibly, and he also noted drivers are bombarded with many forms of distraction, whether they be text messages, notifications from smartphones, GPS devices or signs along the road.

"Were I to extend this duty to this case, in my judgment, any form of distraction could potentially serve as the basis of a liability case," Rand said.

But Rand stressed his decision shouldn't be read as minimizing the need for attentiveness while driving, and he said Americans have become "almost addicted" to wireless communication.

"That is the reality of today's world," he said.

Rand said he suspects his ruling will be appealed.


Perhaps there would gave been a different outcome if her testimony was that or there is proof she knew her boyfriend was driving at the time?
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HockeyDad
14 years ago
I will text you my outrage. I hope you are not driving.
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DrafterX
14 years ago
would have been a drag to have to text everybody and tell them I'm driving and don't reply... 😟
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Gene363
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14 years ago

NJ judge: Texter not liable for driver's crash
...Perhaps there would gave been a different outcome if her testimony was that or there is proof she knew her boyfriend was driving at the time?

rfenst wrote:



I think that is what the plaintiff's lawyer was trying to establish since the sender knew the recipient's schedule would put him in the car at the time. Would he also get an order for transcripts of the text messages?
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rfenst
14 years ago


I think that is what the plaintiff's lawyer was trying to establish since the sender knew the recipient's schedule would put him in the car at the time. Would he also get an order for transcripts of the text messages?

Gene363 wrote:



plaintiff's lawyer probably needs to prove: "knew or should have known". Transcripts of text messages CAN be subpoenaed, but that doesn't mean the attorney did or that the contents of the text was still available- I doubt any cell carrier saves all text messages forever.

However, even if texter knew receiver of text was driving, the proximate and legal causes of the crash were the receiver's failure to pull off the roadway to read the text- or at least drive more safely while doing so.

Like I said before: "superseding intervening cause"-"A separate act or omission that breaks the direct connection between the defendant's actions and an injury or loss to another person, and may relieve the defendant of liability for the injury or loss." Thus, even if texter admitted negligence, texter's highly likely defense would be this and texter would escape blame/fault.
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Gene363
  • Gene363
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14 years ago

plaintiff's lawyer probably needs to prove: "knew or should have known". Transcripts of text messages CAN be subpoenaed, but that doesn't mean the attorney did or that the contents of the text was still available- I doubt any cell carrier saves all text messages forever.

However, even if texter knew receiver of text was driving, the proximate and legal causes of the crash were the receiver's failure to pull off the roadway to read the text- or at least drive more safely while doing so.

Like I said before: "superseding intervening cause"-"A separate act or omission that breaks the direct connection between the defendant's actions and an injury or loss to another person, and may relieve the defendant of liability for the injury or loss." Thus, even if texter admitted negligence, texter's highly likely defense would be this and texter would escape blame/fault.

rfenst wrote:



Understood and thank you for your response.

Hypothetically speaking, what was the plaintiff's lawyer reasoning? Establish new legal grounds or harassment by lawsuit?

I'm going to guess the plaintiff's lawyer gave a similar explanation to the accident victims, the couple, both missing a leg. Then said, "We are very unlikely to prevail, however we can include the text sender in the suit and at the very least force her to at confront her contribution to your misery." [-x [-x [-x
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rfenst
14 years ago

Understood and thank you for your response.

Hypothetically speaking, what was the plaintiff's lawyer reasoning? Establish new legal grounds or harassment by lawsuit?

I'm going to guess the plaintiff's lawyer gave a similar explanation to the accident victims, the couple, both missing a leg. Then said, "We are very unlikely to prevail, however we can include the text sender in the suit and at the very least force her to at confront her contribution to your misery." [-x [-x [-x

Gene363 wrote:





Obviously, there was insufficient insurance or assets to collect from the driver for his fault. So, the strategy was to go for the "deep pocket", someone else who was "at fault"- and who had the ability to pay.

Certain types of damages in certain states are 100% recoverable from ANY party that shares ANY portion (let's say even 00001%) of the fault. This is known as "joint and several liability". The theory for this is that even one who is minimally at fault should carry the burden of compensating the injured or damaged person- who is less at fault or not at all in fault.

The lawyer's reasoning was higly likely that the sender **could** be held liable. That state either has texter liability law (doubtful) or the lawyer was trying to create "new law".
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Gene363
  • Gene363
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14 years ago

Obviously, there was insufficient insurance or assets to collect from the driver for his fault. So, the strategy was to go for the "deep pocket", someone else who was "at fault"- and who had the ability to pay.

Certain types of damages in certain states are 100% recoverable from ANY party that shares ANY portion (let's say even 00001%) of the fault. This is known as "joint and several liability". The theory for this is that even one who is minimally at fault should carry the burden of compensating the injured or damaged person- who is less at fault or not at all in fault.

The lawyer's reasoning was higly likely that the sender **could** be held liable. That state either has texter liability law (doubtful) or the lawyer was trying to create "new law".

rfenst wrote:



OK, your explanation sounds a lot more professional.

What is really disturbing is the idea of "joint and several liability" It seems inherently unfair, is commonly applied?
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rfenst
14 years ago

OK, your explanation sounds a lot more professional.

What is really disturbing is the idea of "joint and several liability" It seems inherently unfair, is commonly applied?

Gene363 wrote:



Let me throw an additional concept into this discussion. Damage Law also includes a concept called "contribution". It grants one who has to pay their own damages plus those of another party (under joint and several liability) the right to recover from the other liable party for the damages paid in excess of the payer's proportion of liability.

So, if the texter was jointly and severally liable and paid the full amount of the damages, the texter could thereafter sue the driver to make the texter "whole". Theoretically, this makes not only the damaged party whole, but the jointly and severally liable party which pays in excess of it share of the damages "whole" too.

Does this additional concept of contribution seem fair? how about less "inherently unfair??



(Oh, and all of this reminds me of my favorite lawyer line: There is no such thing as "fairness" here. The law and courts are the last place you will ever find it.)




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