The National Post recently presented the interesting case in which a New Jersey judge must decide whether someone can be “electronically present” in a car, even if they physically aren’t there, and, if so, whether the person can be held liable for events that take place, or that are caused by their electronic presence.
Put another way, if a person sends a text message to a person who is driving, and the driver gets into a vehicle collision, can others involved in the incident sue the sender of the message for distracting the driver?
This civil claim stems from a 2009 traffic collision in Mine Hill, N.J., where Linda and David Kubert were riding their motorcycle when a pickup truck driven by Kyle Best, then 18 years old, hit them because he was reading a text message on his cellphone sent by Shannon Colonna.
The couple suffered serious permanent injuries and sued Best for damages, but also want to sue Colonna because she should have known that Best was driving at the time she was texting him and was distracting him.
The couple told ABC News, “They were texting back and forth like a verbal conversation. She may not have been physically present, but she was electronically present.”
The evidence shows that about 62 text messages were exchanged between Best and Colonna throughout the day, and hers was the last text message just before the collision.
The lawyer for the couple stated that Colonna should have been aware Best was driving and responding to her text while driving.
Colonna’s lawyer argues that there is no ground for Colonna to be part of the suit and has asked Morris County Superior Court Judge David Rand to dismiss charges against his client, as she owed no legal duty of care under the facts of the case. By the lawyer's arguments, it's up to the person receiving the text to answer it when they can do so safely and his client should not bear that responsibility.
On May 25, 2012, judge Rand has to decide if Colonna can be added to the list of defendants in the personal injury case.
According to legal experts across the U.S., the case has captured national attention because a decision favourable to the plaintiffs would push the limits of texting while driving laws to include conduct of people not even present in the vehicle.
I know my mind: Colonna acted foolishly and perhaps irresponsibly in sending Best the messages (and presumably expecting a timely response), whether or not she knew he was driving, but she did not act illegally. Ultimately, it is the driver's choice whether to read and answer messages and phone calls while driving, and in this case Best failed that test. He could simply have ignored the messages, set his phone to "quiet" or turned it off if necessary. To cast the liability net so wide as to catch the sender of a distracting text message actually diminishes the driver's responsibility to operate his or her vehicle in a safe manner.
Interestingly, New Jersey has a law in place that prohibits talking on a handheld cellphone and texting while driving. I'd have thought such a law would make the judge's decision easy: the driver would have broken the law by simply reading his text messages while driving. The collision would be the driver's fault, and it would be much more difficult to implicate the sender of the distracting message.
I guess we will just have to wait and see.
What do you think? Can a sender of a distracting text message be liable when the recipient gets into a vehicle collision? Is the sender "electronically present"?