Saturday, May 26, 2012

New Jersey Judge David Rand Rules Shannon Colonna Cannot Be Held Liable For Sending Text Message To Man Who Caused Traffic Mishap While Reading It

Apparently a personal injury lawyer in New Jersey thinks you should be held financially liable for sending a text message to another person if that person reads it while driving and causes a traffic mishap. Fortunately, a New Jersey judge has rejected that notion, and this decision could set a precedence anywhere, including Alaska.

From the Newark Star-Ledger, the closest local source, we learn that on May 25th, 2012, Morris County Superior Court Judge David Rand ruled that a woman, Shannon Colonna, could not be sued for texting her boyfriend, Kyle Best, while he was behind the wheel of his vehicle, even though his response to her text led to a tragic accident. The case is designated Kubert v. Best, MRS-L-1975-10.

The case originated on September 21st, 2009, when David and Linda Kubert were riding a Harley-Davidson in in Mine Hill, NJ. They were struck by a pickup truck driven by Kyle Best. The Kuberts were seriously injured; they endured multiple surgeries and each one lost a leg. In the final seconds before impact, the Kuberts could see that Best had his elbows -- not his hands -- on the steering wheel, and his face was peering down. Best subsequently admitted to texting at the time of the accident, and records showed he was responding to Colonna’s text seconds before dialing 911. He pleaded guilty to distracted driving and was ordered to speak to area high schools about the dangers of texting and driving and to pay $760 in fines. His driver’s license was not suspended.

Naturally, faced with rising medical costs, the Kuberts retained a high-powered personal injury lawyer, Stephen "Skippy" Weinstein, who initially set out to sue Kyle Best and Best's father (the owner of the truck) for damages in 2010. But he soon seized upon a novel idea -- why not also sue Shannon Colonna as well? After all, she aided and abetted Best’s negligence by texting him when she knew or should have known he was driving, did she not? The Kuberts agreed to add Colonna to the suit in 2011.

Colonna's lawyer, Joseph McGlone, was outraged. To the Daily Record, he said "It’s not fair. It’s not reasonable. Shannon Colonna has no way to control when Kyle Best is going to read that message". McGlone argued in court that Colonna had no control over when or how Best would read and respond to the message. So he asked Judge Rand to dismiss Colonna from the case. Judge Rand agreed, and dismissed Colonna from the case on May 25th, explaining that the responsibility to pay attention is the driver’s, saying "I find it is unreasonable to impose a duty upon the defendant in this case under these facts. Were I to extend this duty, in my judgment any form of distraction could potentially serve as basis of a liability case". Judge Rand also pointed to GPS devices and billboards as similar distractions drivers must avoid on their own. The judge's decision has no impact upon that portion of the lawsuit against Kyle Best; it continues.

According to, Judge Rand also cited a precedent in Durkee v. Jett, 09-cv-449, in which a federal judge in the Western District of North Carolina dismissed a products liability claim brought in 2011 by four people injured when a tractor-trailer hit a car, allegedly because the driver was distracted by a text from the dispatcher. The suit faulted the tractor-trailer communications system because it allowed receipt of texts while the vehicle was in motion. Rand found Durkee, which is on appeal, not controlling but instructive.

The Kuberts are not satisfied; they plan to appeal once the remainder of the suit against Best is decided. It could take 90 to 120 days for the appellate court to weigh in. David Kubert, who worked at Verizon before the accident, found out on May 23rd that his insurance will no longer grant him disability benefits, so he has a financial incentive to keep the Damoclean sword of litigation dangling over the head of Shannon Colonna.

1 comment:

  1. "Superior Court Judge" David Rand.......What wisdom.