While the trial of Aaron Deveau continues in Haverhill, Massachusetts, (for back story, see our previous blog entry on this texting while driving case) we focus today on an interesting legal theory regarding personal injury liability for texting. Or a twist on the clear theory of criminal responsibility in the Haverhill, Massachusetts case.
The case takes place in 2009 in New Jersey. A young man, Kyle Best, 19, was driving his pickup truck and receiving text messages from his girlfriend, Shannon Colonna, also 19. Both were 17 at the time. He retuned a text to his girlfriend 8 seconds before he called 911 to report the collision! As a result of his distracted driving, Best negligently drove into a motorcycle. The driver of the motorcycle, David Kubert, and his wife, Linda, were injured as a result of Best’s negligence. The injuries included both Mr. and Mrs. Kubert to loosing a leg.
It is our speculation that Best’s insurance company agreed to liability and paid the full policy. This is because Best pled guilty to distracted driving in criminal court, and most insurance companies would consider this clear evidence of negligence. It is our further speculation that the coverage was minimal, or clearly insufficient to pay for the considerable medical bills, pain, suffering and disfigurement of Mr. and Mrs. Kubert. Finally, we speculate that the Kuberts did not have sufficient underinsurance coverage.
Thus, the Kuberts attorney came up with a legal theory that was intriguing, but ultimately failed. The Kubert’s filed a lawsuit against Shannon Colonna. They allege that she was negligent for texting someone who she knew, or should have known, was driving a motor vehicle and therefor causing, or contributing to, the collision. It’s a fascinating legal theory. The Kuberts’ attorney argued that Ms. Colonna was “electronically present” even though she was not physically present at the scene of the accident. However, when taking Ms. Colonna’s deposition, she testified that he did not know if Best was driving. Thus, the plaintiffs, the Kuberts, had no proof that Ms. Colonna knew, or even should have known, that her texts could cause Best to be distracted while driving.
Judge David Rand, a New Jersey trial judge, decided to dismiss the case against Ms. Colonna. He reasoned that there was no evidence that Ms. Colonna was negligent. In fact, he noted, it was the driver’s job to drive responsibly. Drivers could face all sorts of distractions, he reasoned. He stated that he did not want a decision in this case to hold anyone and everyone for distracting a driver to be liable for money damages in a civil case. It would be “unreasonable to impose a [legal] duty” on civil defendants such as Ms. Colonna.
Nevertheless, he noted that Americans have become “almost addicted” to their cell phones. The plaintiffs’ attorney, Stephen “Skippy” Weinstein, with a Superlawyer ranking in New Jersey, informs that he will appeal the trial judge’s ruling. Our opinion here is that the trial judge’s decision will be upheld. We reason that absent some proof that Ms. Colonna knew that Mr. Best was driving, there is not much legal theory to go on. If there were, anyone calling someone’s cellphone would be potentially liable to distracting a driver. However, this does not negate the profound and significant problem, which is only increasing, of distracted driving. Absent severe penalties and education, the crashes will only increase.