Can the sender of a text message be liable for a texting while driving accident?

Taylor Martin
 from Concord, NC
Published: May 21, 2012

The point has been made a million times and will likely be made a million more. Texting while driving is dangerous. Studies show it, fatal crashes prove it and state laws (at least in 19 states) ban it; yet drivers continue to put themselves and others in harm's way to type out a simple message that could more than likely wait.

Generally, when an accident occurs involving a driver who has been texting, the driver is the only one perceived to be at fault. They were the one behind the wheel, the one who chose to answer a text message while driving and the one who was not paying enough attention to his or her surroundings and crashed into something ... or someone.

A couple who were on the receiving end of a texting while driving incident, however, feel differently. David and Linda Kubert had been riding their motorcycle through Mine Hill in 2009 when they were hit by Kyle Best. Best had been texting his girlfriend, Shannon Colonna, on his way home from swimming at the local YMCA. He wasn't texting, but was reading Colonna's message when he drifted from his lane and hit the Kuberts. As a result of the accident, the Kuberts both lost their left legs. David Kubert lost his job and health insurance.

Chuck Bennett of New York Post says, "Best, who was 18 at the time, pleaded guilty to using his cellphone while driving, paid a $775 fine and agreed to speak publicly about the dangers of texting while driving."

But the Kuberts are not satisfied with suing solely Best. They have moved to add Colonna to the suit, claiming she knowingly texted Best while he was driving and caused him to crash into them. According to Bennett, the Kuberts' attorney, Skippy Weinstein, says passengers have been held accountable for distracting drivers and causing them to ignore traffic regulations in the past and he argues that the 60 or so text messages between Colonna and Best that day in 2009 made her "electronically present" in the car. 

This case, believed to be the first of its kind in the country, could pose problems to individuals who knowingly text people who are behind the wheel. A Superior Court judge in Morristown, New Jersey will decide whether Colonna can be added to the lawsuit against Best.

The question now is: can the sender of a text message be held responsible for the actions of someone behind the wheel?

Honestly, this should be an open-and-shut decision for the Superior Court judge. I can't think of a better way to say how I feel about the matter than how Greg Kumparak (@grg) put it in response to a tweet from Eric Zeman (@phonescooper) of Phone Scoop. He says:

"Not her fault, legally. Morally perhaps, if she knew he was driving. Legally, no way."

Colonna may have known her boyfriend was driving and knowingly text messaged him, regardless. But she, in no way, forced him to read or respond to any of her messages. It all comes down to Best and his own decisions. Colonna had no control over Best's actions and should not be held accountable by law.

Sure, had Colonna not sent her boyfriend any messages, Best probably would have never crashed into the Kuberts. But saying the sender of a text message – a person who is not physically in the car – is liable for the actions of a driver who chooses to text while driving is as logical as implying an attractive jogger on the sidewalk is liable for causing an accident for the same reason. There's a degree of separation where responsibility cannot be tied to anyone but the driver.

After too many close calls with mailboxes and the passing of a statewide ban on texting while driving in North Carolina, I decided texting can wait. I do not text while my car is moving and if someone needs to talk to me immediately, I call them (using hands-free, of course). But, say I was the driver in a texting while driving incident. There is no way I could place any blame on the person who texted me if I chose to respond. Even if I were the victim in such an incident, there is no way, in my right mind, that I could believe anyone but the driver was responsible. 

Where do you stand on the matter, ladies and gents? Should Colonna be held accountable for text messaging her boyfriend even though she knew he was driving? Or should all of the blame be on Best, as he was the one who chose to read and respond to Colonna's messages?