NJ Judge Rejects Concept Of “Electronic Presence” In Texting Accident

May 29, 2012 by Mark Siesel

In a case believed to be the first of its kind in the United States, a New Jersey judge ruled on May 25, 2012 that a woman who was texting her boyfriend when the boyfriend was involved in an accident with a motorcycle and seriously injured a husband and wife is not liable for their injuries. On September 21, 2009, Shannon Colonna was texting her boyfriend, Kyle Best, 18, who was driving a Chevy truck in Mine Hill, New Jersey. Best was in the process of returning one of Colonna’s texts when his truck struck a motorcycle occupied by David and Linda Kubert. In the car accident, David Kubert had his left leg torn off above the knee, and Linda Kubert suffered injuries to her left leg which ultimately led to amputation.

David Kubert described that they observed Best holding the steering wheel with his elbows and with his head down. The Chevy truck swerved across a double yellow line and struck the Kuberts’ motorcycle head on. Mr. Kubert saw his left leg torn off and Ms. Kubert observed that the bones in her left leg were coming out of her pants.

The Kuberts’ lawyer sued both Mr. Best and Ms. Colonna, arguing that although Ms. Colonna was not in the vehicle at the time of the accident, she was “electronically present” and knew that Mr. Best was driving while responding to her texts. Phone records showed that Colonna and Best had texted each other 62 times the day of the accident, including just prior to the impact. At a deposition during the “discovery” stage of the case, however, Ms. Colonna denied any knowledge that Mr. Best was driving as he was answering her text messages.

In the criminal case, Best pled guilty to distracted driving, acknowledging that he was using his cell phone and responding to a series of text messages he received from Colonna around the time of the accident. The judge ordered Mr. Best to speak at 14 high schools about the dangers of texting while driving. He must also pay $775.00 in fines. No action has been taken against Best’s driver’s license at this time.

38 states across the Unites States have banned texting while driving, including New York in 2011.

State Superior Court Judge David Rand agreed with the defense that Ms. Colonna could not be held legally responsible for the accident and horrendous injuries suffered by the Kuberts. It appears that Judge Rand determined that his role is to interpret the existing law, not create new laws, and that if state legislators want to ban sending texts to drivers, they will have to pass a law to that effect. Clearly, however, the trend is moving in the direction of more enforcement against distracted driving, and the next logical step may be to institute liability against those who cause distracted driving as well as those who commit the violation. However, in this case, the bottom line is that if Best had simply waited until he stopped driving to respond, or even pulled over, the accident would never have occurred.

If you or a loved one are seriously injured in a car crash, motorcycle accident, or suffer injuries due to medical malpractice, you need an aggressive trial attorney who has the experience and knowledge to obtain full compensation for all of your injuries and damages, including past and future pain and suffering, loss of earnings and earning potential, medical and hospital expenses, and loss of enjoyment of life. Contact the Westchester County Personal Injury Attorneys at the White Plains, New York Law Office of Mark A. Siesel, as we are dedicated to achieving those goals for our clients. Call us toll free at 888-761-7633 or contact us online for your free initial consultation today.