You Be the Judge

You Be the Judge: The Case of the Second Texter

Is the person who sends a distracting text just as responsible for 
a car accident?

steering wheel phone
Noma Bar for Reader’s Digest

David and Linda Kubert were riding together on David’s motorcycle in Morris County, New Jersey, late in the afternoon on September 21, 2009. As the couple, then both 56, rounded a curve, David saw a truck heading directly toward them. He couldn’t swerve in time, and the two vehicles collided. When David regained consciousness, he realized he was lying on the ground, and his left leg was gone, completely and permanently severed during the crash. The bones in Linda’s left leg were shattered. Doctors amputated her leg later that night.

Eight minutes before the collision, then-18-year-old Kyle Best clocked out of his job teaching swimming at the YMCA and slid behind the wheel of his father’s Chevy pickup. He said he sent a few texts while sitting in the parking lot, then headed to his parents’ house for dinner. While on the road, he sent two texts, the last one eight seconds before dialing 911 to report that he’d been in an accident: His truck had veered over the centerline and struck a couple on a Harley.

In June 2010, the Kuberts sued Best for driving in a negligent and careless manner. Attorneys settled the lawsuit two years later. Best’s 
insurance company paid the couple $500,000. Best pleaded guilty to 
distracted driving, but his license was never suspended. He paid $775 
in fines.

At the same time, the Kuberts’ attorney, Skippy Weinstein, was also building a case against then-17-year-old Shannon Colonna, Best’s girlfriend, who had been texting Best at the time of the crash. In a first-of-its-kind lawsuit, Weinstein claimed that Colonna was also liable for the crash because she was “aiding and abetting” by being “electronically present” in the truck.

“Why wouldn’t the person he was texting with—who knew that he 
was driving at the time—be as responsible as he is?” Weinstein asked.

Colonna’s attorney, Joseph McGlone, maintained that Colonna did not know that Best was driving nor that he was reading the texts while driving. “A person might get a text and not read it for three hours or even for three days,” McGlone noted. “How would the texter ever be able to know whether or not someone read the text while driving?”

Should Shannon Colonna be held responsible for a car accident that occurred as she was texting the driver? You be the judge.

Next: The Verdict

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31 thoughts on “You Be the Judge: The Case of the Second Texter

  1. I believe that the sender of a text is not guilty. They have no way to know that the person they are texting is driving. The person getting the text can simply say something like “Sorry, can’t talk now.” Then they can explain why they couldn’t talk and follow up with the person when they are done driving.

  2. If I’m on a healthy diet and someone sends me a cake, are they responsible if I eat the cake? In the end, it was the drivers fault for looking at their phone while driving.

  3. One cannot possibly be involved in an accident just by sending a text since he/she could reply anytime they choose. The driver who texts or even glances at their phone should be blamed for their own actions.

  4. People need to be responsible for their own actions. You should not be texting while driving – period. Tired of stupid people blaming others for their poor decisions. Lawyers and judges just exacerbate the problem

  5. If someone sends you a text, you can ignore it. Even if you can PROVE that the sender KNEW that the reader was busy at the time, the receiver is responsible for being irresponsible. The sender may send a distraction, but it’s the receiver who chooses to make it a distraction.

  6. Unless the person texting has some sort of video surveillance in the vehicle, how would they know if the person they are texting is driving? People that have cell phones need to turn them off while driving, and only look at them when they are in a safe location. The guy that was texting, and driving, is 100% responsible for his own behavior. No one can make him look at his cell phone while he is driving, or doing anything else, for that matter.

  7. How the person sending the TXT msg know what the receiver is doing? Seems like a case of trying to share the blame…..

  8. I also think that the new second person texting law is insane, how is one to know if the person on the other end is driving or if they will even pick up there phone. It is the responsibility of the person driving not to text or look at there phone while driving.

  9. Disagree! Disagree! Disagree! For crying out loud when are people going to start taking responsibility for their own actions?!? The person texting a driver should be allowed to do so. The driver should not check his phone. PERIOD! If I want my husband to pick up bread on the way home. I should be able to text him. He should be able to check his phone when he gets to a stop light or a place where he can pull over and we should have bread with dinner. I know my husband will not check his texts while driving. We’ve made that promise to each other, plus it’s the law.
    How is it any different if I know he’s driving or I don’t? I expect him to pick a safe time to check his texts and he does. HE IS BEING RESPONSIBLE…like people are supposed to be. It seems only in the past 10 years or so, responsibility and consideration for others has taken a flying leap out the window. When did everyone become so entitled to everything they want that common sense and courtesy no longer apply?

  10. I’m hoping that Miss Colona & her family has the money to appeal. She shouldn’t be held responsible for her boyfriend’s actions. Those 2 text he sent while driving could have (& should have) waited until AFTER he got to his parent’s house or some other safe place where his truck wasn’t moving.

  11. Not to mention that no one ever knows if someone will a) pick up the phone b) read the text, or c) even have their phone ON!!!

  12. Unless person a knows that person b is driving, and texts him/her anyway, they are not responsible for person b if they get in an accident.

  13. “We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew that the recipient would view the text while driving and thus be distracted.”

    It’s up to the DRIVER to decide not to read the text because they are driving, not the person sending the text. How can the sender possibly know that the driver would view the text while driving? Even if the sender knew it would be read and that the receiving person was driving, it is the sole responsibility of the driver to obey the laws and to not allow themselves to be distracted by ANYTHING while driving.

  14. What if you’re walking on a sidewalk and a friend passes you in their car and you yell out “hello” and he or she turns to acknowledge you and crashes ? You definitely knew they were driving and tried to get their attention. I believe similar circumstances to the texting question. My opinion neither should be responsible!

  15. I say that during drives any vehicle we should not open our mobiles because an accident can be done in 1second,so,driver should stop after 15minutes and read as well as received the text so I am disagree with this opinion that the fault is of who text the message because he or she don’t know that another person is driving

    1. There isn’t always a safe or good place to stop every 15 minutes, but I do agree that drivers are responsible for making sure their vehicle isn’t moving before texting. Although, if there’s a passenger, having the passenger do the texting is also (at least in my opinion, I’m not sure about yours as you haven’t said) perfectly acceptable also.

  16. I do not believe that the sender of a text can be held liable as the driver doesn’t have to read and/or send a text even if the sender know he/she is driving!!! It is the drivers responsibility!!!!

  17. Where does the accountability end? If we are going to hold the person sending the text responsible for an accident, should we also hold the company that sold the phone contract to the driver because that allowed him to receive a text while driving? The person receiving the text is ultimately responsible for his own decisions – whether it be reviewing a text or answering a phone call, or changing the radio station.

  18. Another example of no common sense. The driver and no one else is responsible for their actions. Supposedly it’s ok to call someone while they are driving, or for a driver to be talking on their cell phone, why isn’t that against the law? So if I call someone and leave a voice message asking them to call me back when are they off the road, that’s ok, but if I text that person asking them to get in touch with me after they are off the road, then that is illegal? Absolutely rediculous.

  19. Well hip-hip hooray. Chalk up one more for irresponsible people and a judiciary who can now read minds. Was she or wasn’t she aware that he might answer her text while driving? The appellate judge thought so, or was the judge reading her mind?!
    Whoa. I am so frustrated with Judges who do not uphold existing laws in favor of making new ones, which is NOT their place. No wonder citizens do not trust the so-called Justice System.

  20. I agree somewhat that if they could determine the second texter knew they were driving and texting, that they are adding to the distraction. I would also like to point out that my husbands phone gets text up to weeks late, so I mean it’s not like you always insta expect to send and get responses.

  21. I like the verdict.Even though a driver is responsible for her/his action behind the wheel,the second texter should be held accountable to some extent.As far as the second texter is aware that the first one is driving,then it becomes a crime to text them.Hopefully this will help reduce the number of texting-related accidents.I think we should be looking at how this will affect the rate of texting accidents in the long run.

  22. I can’t believe that anyone would blame his girlfriend for this accident. Even if she knew he was driving, she didn’t force him to look at it. To say she was “aiding and abetting” is crazy. It seem this was just a way for Kubert’ attorney to get more money.

  23. I am truly sorry for Kuberts horrible accident and the permanent changes to their lives. However, the legal action against Shannon Colonna as this seconder texter that resulted in an tragic auto accident was unfair to her and truly frightens me. It has now set precedent that may put innocent people in prison. When I’m driving, I mute the volume on my mobile phone so I never text or talk and drive. However, I know 4 people who have a land-line so in order to contact my family and friends, I must use their mobile phone. If the call is answered and I am told they are driving, I immediately say it is not an emergency and end the call. I have absolutely no control whether a recipient of my text is driving and decides to read that text. My husband is 47 years old and has never had a single auto accident. While in the car, we listen to the radio. Will listening to the radio be the next illegal distraction while driving a car? Will that be followed by a legal argument that beautiful foliage along the road distracted a driver causing an accident? Those with the money and political motivation to make a statement can and do find something to blame every heart-breaking auto accident but that doesn’t make it a step forward for the greater good. In my opinion, Shannon Colonna should receive a monetary reward for the emotional trauma she endured while this case was dragged from court to court. Maybe, if the lawyers had to pay Ms. Colonna, for causing emotional trauma to an innocent by-stander they won’t be so quick to pursue this type of harassment. With that said, I’m sorry for all those actually involved in this tragic vehicle accident.

  24. I sure agree with other contributors that there is NO WAY for a sender to know that a recipient will be driving when he/she reads their text message. The appellate court that came up with this ruling needs their hands slapped for not thinking this thing through.

  25. Colonna is completely blameless. Best is fully responsible. Texting while driving should carry the same penalties as drunk driving, because whether you want to believe it or not, people who text and drive are every bit as deadly a menace on the highway as those who drink and drive.

    1. What penalty? There are far too many DUI drivers who never see the inside of a jail cell until they kill someone.

    2. agree 100%; next thing you know, budweiser and every bar it’s sold at will be sued because they know the guy who’s drinking right now will soon go out, drive his pickup and kill a happy innocent family…how atrocious is that!!

  26. The person who sends the text may know the other person is driving, but has no way to know if the driver has his phone TURNED ON ! Ultimately the driver is responsible for the operation of his vehicle, and should turn his phone OFF while driving or put it in the back seat or trunk of the vehicle where he will not be tempted to answer it if a call or message comes in while he is driving.

  27. The person sending a text can never definitively and accurately determine the time and place that the recipient chooses to read that text. It is absurd to extrapolate sending a text into a murder conviction. The driver is responsible for his own behavior.

  28. The new texting law that holds people accountable for someone else’s driving is ludicrous! Take for example the three elements of murder which are 1. Willfulness, 2. Deliberation, and 3. Premeditation,. You would have to proof that the person texting the one driving did so with the willfulness, deliberation ,and premeditation to harm someone intentionally. This law will never be upheld by the United States Supreme Court.

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