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Should a person who sends a text message to someone they know is driving be held liable if that driver gets into an accident while reading the message?

That’s the question that is currently being considered by a New Jersey appeals court. The case involves David and Linda Kubert, now living in Florida, who were seriously injured in September 2009, when their motorcycle was smashed into by a pick-up truck driven by Kyle Best, then 19 years old. Best admitted he was reading a text when he hit the Kubert’s motorcycle.

David Kubert had his left leg torn off above the knee and Linda Kubert later had her left leg amputated. In August 2012, the couple settled a lawsuit they had filed against Best for $500,000, the maximum amount his insurance company would cover.

The couple had also filed a second lawsuit, against the person who had sent the text messages that Best had been reading at the time of the crash, Shannon Colonna. Colonna was 17 years old at the time of the crash and was dating Best. A trial judge in Morristown, N.J. dismissed the lawsuit and the couple filed an appeal. When the original suit was dismissed, I wrote about it on our firm website, sharing details about the case and also expressing my legal opinion about the judge’s decision. That article can be found at ‘Judge: Text Sender Not Liable for Distracted Driving Accident’.

The three-judge appellate panel recently heard oral arguments from attorneys for both sides. The Kubert’s attorney asked the court to impose “a duty of care” on those who know the recipient is both behind the wheel and likely to be reading texts while driving. He presented evidence that Best and Colonna had exchanged 62 texts during the few hours leading up to the accident, and therefore, she was very much aware that Best was driving while they were exchanging messages.

(In tort law, a duty of care is a legal obligation to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm.)

Several statements by the judges indicated that they are open to the Kubert’s position of Colonna’s liability for the accident.

When Colonna’s attorney argued that his client couldn’t control when Best read her messages, one of the three judges responded, “Other than not to send it to begin with if she knows he’s driving.” The attorney also argued that Best was sending a text when the accident occurred, not reading Colonna’s message. But a second judge response was that had Colonna not sent a text, Best would not have been looking down at his phone.

Whether or not this appellate court decides the Kubert’s lawsuit against Colonna has merit and should proceed remains to be seen. But whatever the decision, it will likely be a question that will be raised again as new technologies create situations that require new laws.

Could the sender be liable if a car accident occurs?

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