Everyone knows that sending or reading a text message while you drive can cause an accident.  But recently, New Jersey plaintiffs tried to extend liability to a party that sent a text message to a driver involved in an accident in Kubert v. Best.

On Sept. 21, 2009, Kyle Best, age 19, lost control of his pick-up truck, crossed the yellow line and struck David and Linda Kubert on their motorcycle.  Both of the plaintiffs lost a leg due to injuries sustained in the accident.

The Kuberts claimed that because Best was answering a text when he lost control, Shannon Colonna, who sent the text, was “electronically present” and also at fault. They also alleged that Colonna knew or should have known that Best was driving when she sent the text.  They premised their legal theory on civil aiding and abetting and forseeability and proximate cause.

Evidence developed during discovery showed that the defendants exchanged 62 texts that day, and three messages within about eight minutes prior to the accident, including one text within a minute of Best calling 911 to report the accident.

Defendant Colonna argued against imposing liability, as texters have no control over when, where or how recipients will read and respond to their messages.  In an oral opinion from the bench, Morris County Superior Court Judge David Rand agreed, and granted summary judgment dismissing civil aiding-and-abetting claims against Colonna, finding she had no duty of care under the facts of the case.

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