This will be interesting to see how it turns out.
N.J. couple injured in crash with texting teen appeal dismissal of suit against his friend
http://www.nj.com/morris/index.ssf/2013/05/couple_injured_in_crash_with_t.html#incart_riverMORRISTOWN — A person who sends a text message to a driver is violating a “duty” to “discourage” the risk of injury to “innocent victims,” an attorney argued today as he pursued an appeal in a landmark texting case.
Appearing before a three-judge panel of the appellate division, sitting in Morristown, attorney Stephen “Skippy” Weinstein sought to reverse a decision by a Superior Court judge who ruled a year ago that Shannon Colonna, now 21, of Rockaway, could not be sued for a 2009 accident in which motorcyclists David and Linda Kubert, formerly of Dover, each lost part of a leg.
Colonna, then 17, had sent a text message to pickup truck driver Kyle Best, then 18, of Wharton, who hit the couple head-on seconds after responding.
Seeking to send the case back to Superior Court for a jury to decide, Weinstein argued that Colonna “ aided and abetted” Best and provided “substantial assistance” in the accident, even if she didn’t intend for it to happen.
The judges, who will be issuing a written decision in the appeal, questioned both Weinstein and Colonna’s attorney, Joseph McGlone, over their perception of the accident and the “duty” of the sender of a text message.
“The question for us is, how do we write up that duty so it is applied the right way?” said Judge Victor Ashrafi.
Judge Michael Guadagno pointed out that Colonna repeatedly said in a 2011 deposition that she “didn’t remember” if she knew Best was driving.
“If she knew, you would say that’s enough to hold her liable,” Ashrafi told Weinstein, and he agreed.
“The judge should remand it for the jury to find out if she knew,” responded Weinstein.
The attorney has taken the position that Colonna knew Best’s schedule that day because the two teenagers, who were dating, had exchanged 62 text messages and had also eaten lunch together before the accident which occurred in Mine Hill at 5:49 p.m. while Best was driving home from his afternoon job as a swimming instructor at the Randolph Y.
Colonna’s attorney, McGlone, argued Best was solely at fault, because the accident occurred immediately after he sent a text message.
Ashrafi responded, “But for her sending the text to him, he wouldn’t be looking down.”
“My client doesn’t know he’s driving, she doesn’t know his schedule,” McGlone replied. “Shannon cannot control when Kyle Best reads the message.”
But Guadagno responded, “Those things are meant to be read right away.”
The third judge, Marianne Espinosa, pointed out that the messages themselves were not preserved, “so we don’t know if they invited an immediate response.”
“Is there a duty of a person to avoid sending a text message if the person knows the driver is in a habit of looking immediately at the text?” Ashrafi asked, saying that may be an issue “for the jury to decide.”
The Kuberts, who moved to Florida, settled their suit against Best last August for $500,000, according to Weinstein, who said that was the maximum allowed by Best’s insurance policy.
Best was issued summonses for using a cell phone without a hands-free device, careless driving and making an unsafe lane change.
Neither the Kuberts, Best nor Colonna were in court today.
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Topic: N.J. couple injured in crash with texting teen (Read 1022 times)