May 25, 2012

Sender of text message culpable for auto accident?

For me, this belongs as an entry to Overlawyered.com (to whom I sent a tip, by the way): Some enterprising attorney -- with a very catchy name, too: "Skippy" Weinstein -- thinks the sender of some text messages should held culpable for an auto accident that the recipient of the texts got into:

David and Linda Kubert of Dover, N.J., initially sued Kyle Best of Wharton, N.J., after he veered head on into them on Sept. 21, 2009, as they rode their motorcycle. Each lost a leg in the wreck, and Best pleaded guilty earlier this year to using a hand-held cellphone while driving, careless driving and failure to maintain a lane in Montville (N.J.) Municipal Court.

But the Kuberts' lawyer, Stephen "Skippy" Weinstein, amended his lawsuit to include Shannon Colonna, then 19, as someone who aided in Best's negligence even though she wasn't in the vehicle.

Cell phone records revealed during the suit's discovery process show the pair exchanged more than two dozen texts during the day but stayed off the phone for about five hours while Best worked, Weinstein said.

Colonna said she essentially wasn't certain if Best was driving or not. Her attorney says "The sender of the text has the right to assume the recipient will read it at a safe time," and that "It's not fair. It's not reasonable. Shannon Colonna has no way to control when Kyle Best is going to read that message."

I totally agree with Colonna's lawyer. If "Skippy" succeeds in his novel theory (they used that term on a radio news report this morning), will this mean that any text sent by someone will have to include the warning "Do not read this if you are driving"? Still, that wouldn't have prevented this accident as Best smacked into motorcyclists by merely checking who had sent the text message, not by reading it. To wit: Isn't it incumbent upon the recipient of a text to exercise good judgment as to when to read it? If I get a text while driving, I never check to see who sent it let alone read it, sometimes only checking the sender while at a red light (and never reading the message).

UPDATE: The aforementioned Overlawyered.com notes that today the judge in the case has dismissed "Skippy's" contention that Colonna should be liable for damages.


Posted by Hube at May 25, 2012 04:05 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)