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?

By Vicki Glembocki
Also in Reader's Digest Magazine April 2014

steering wheel phoneNoma 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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  • Your Comments

    • Suzanna

      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.

    • MynameisNaeMe

      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.

    • Lettie Lawman

      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.

    • Kristen

      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.

    • A. Rogers

      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.

    • Michael

      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.

    • Howard Doyle

      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.

      • Suzanna

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

      • some guy

        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!!

    • Denver Architect

      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.

    • Beckie Sorg

      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.

    • Art

      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.