The Pulse: Think again, and again, about sending that text

Thirty-eight states have made it illegal to text while driving. But should a person who knowingly texts a driver be held liable in a civil suit? A recent New Jersey appellate court decision said yes, and it has sparked quite a debate. Here's how the court's opinion describes what happened:

On Sept. 21, 2008, David Kubert was riding his motorcycle, with his wife, Linda, as his passenger. Around a bend in Mine Hill Township, they were struck by a pickup truck driven by Kyle Best, 18, that had crossed a center double line. According to the opinion, "the collision severed, or nearly severed, David's left leg. It shattered Linda's left leg, leaving her fractured thighbone protruding out of the skin as she lay injured in the road." Both would lose their left legs.

Best called 911 at 15 seconds after 5:49 p.m., and then rendered aid to the Kuberts. He would later plead guilty to using a handheld cellphone while driving, careless driving, and failure to maintain a lane. Part of his punishment required him to speak to 14 high schools about the perils of texting and driving.

The Kuberts sued Best. Through pretrial discovery, a timeline emerged of Best's activities the day of the accident. Best and 17-year-old Shannon Colonna traded texts the morning of the accident. (The two texted each other 62 times that day, with about an equal number of texts originating from each.) Next, they had lunch together and watched TV. Best then went to his part-time job as a swim instructor at the local YMCA. He punched in at 3:35 - at 3:49, Colonna texted Best, but he didn't immediately reply. Best punched out at 5:41 and, a minute later, texted Colonna.

The accident occurred four or five minutes after Best began driving home. (Initially, Best said he did not text while driving - but, when confronted with the mobile-phone records, admitted that he and Colonna exchanged messages within minutes of his beginning to drive.) In her deposition, Colonna acknowledged being an active text messenger ("Probably like 110 a day or more. I mean, I'm a young teenager. That's what we do"). But she did not admit to knowingly texting Best while he was driving home. She said she did not know that Best clocked out at 5:41 ("I didn't know his schedule") and, hence, did not know where Best was when he texted her at 5:48.

After detailing the calls, the appellate court noted:

"This sequence indicates the precise time of the accident within seconds of 5:48:58. Seventeen seconds elapsed from Best's sending a text to Colonna and the time of the 911 call after the accident. Those seconds had to include Best's stopping his vehicle, observing the injuries to the Kuberts, and dialing 911. It appears, therefore, that Best collided with the Kuberts' motorcycle immediately after sending a text at 5:48:58."

The court inferred that Best sent that text in response to a text from Colonna, which he received 25 seconds prior, and the court said it appeared that Best initiated the texting with Colonna when he began to drive home.

After initially suing Best, the Kuberts then added Colonna as a defendant.

"We live in an electronic age, and in this particular case, this young lady was electronically present in that truck on that day when this accident occurred," the Kuberts' lawyer, Stephen "Skippy" Weinstein, told me last week.

Colonna's lawyer, Joseph J. McGlone, would not comment, but he had argued in court that she had no legal duty to avoid sending a text to Best and that she did not know he was driving. McGlone told the court that cellphone analysis showed that Best texted Colonna seconds before 5:48. She responded 31 seconds later. Best texted her back, and seconds later he called 911 to report the collision. In other words, there was no intervening text from Colonna between Best's last text to her and his 911 call.

A judge dismissed the case against Colonna, and the Kuberts appealed, claiming that Colonna knew Best was driving home from work when she texted him at 5:48:14, less than a minute before the accident.

Judge Victor Ashrafi, on behalf of two of the three members of the Superior Court Appellate Division panel, wrote that, in certain circumstances, liability could attach to a person texting a driver, but not in this case, where the evidence was insufficient to show Colonna texted Best knowing that he was driving. (The Kuberts' case was made difficult by the fact that the content of the messages was gone.) The third panelist, Judge Marianne Espinosa, agreed to dismiss the case against Colonna but did not agree that a person texting a driver could be held responsible in certain cases.

In other words, the court did not hold that someone who texts a person driving was liable for that person's negligence but that "a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving."

An appeal of the ruling is possible, so this case might not be over. Regardless, this first-of-its-kind decision is a warning for all who text. If you send a message asking, "what r u doing?" and the reply is, "driving," you'd better not respond.