<B><I>Online Exclusive:</b></i> <b>No Liability Found for Sending Texts to Driver Just Before Crash</b>

On Sept. 21, 2009, Kyle Best, then 19, was driving his pickup truck on his way home from teaching a swim class at the West Morris YMCA in Randolph when he lost control, crossed the yellow line in Mine Hill and hit David and Linda Kubert on their motorcycle.

David's left leg was torn off by the impact, while Linda's was left hanging and had to be amputated.

The Kuberts claimed that because Best was answering a text from her when he lost control, Colonna was electronically present in Best's pickup truck and thus, also at fault. They alleged that Colonna knew or should have known that Best was driving when she sent the text. She testified at her deposition that she 'may have known.'

The Kuberts contended that they merely sought to extend the established claim of civil aiding and abetting to a new set of factual circumstances by applying traditional tort concepts like foreseeability and proximate cause.

Best had clocked out from the YMCA at 5:41 p.m. and he and Colonna, then 17, exchanged three text messages by the time he reported the accident, eight minutes later.

Best texted Colonna at 5:47.56, Colonna texted back at 5:48.23 and he responded at 5:49.07. His call to 9-1-1 about the crash was made at 5:49.15.

Rand noted that it was Best who initiated the text exchange with Colonna that led up to the crash.

Best and Colonna sent each other a total of 62 texts that day. At a deposition taken before she was named as a defendant and retained her lawyer Joseph McGlone, Colonna testified she typically sent a total of more than 100 texts per day, adding 'I'm a young teenager. That's what we do.'

The Kuberts also argued that because of Colonna's close relationship with Best, she knew that his schedule as a student, swim teacher and volunteer firefighter and EMT put him frequently behind the wheel and that her texts to him were 'part of an ongoing pattern of daily, multiple text exchanges, many of which were likely to take place while Kyle Best was driving.'

Colonna's lawyer, McGlone, argued that no New Jersey case had recognized 'a duty not to send an electronic message to a person who is driving a car' and that it would be unfair and unworkable to impose a duty on texters because they have no control over when, where or how recipients will read and respond to their messages.

The closest case Rand found was Durkee v. Jett, 09-cv-449, in which a federal judge in the Western District of North Carolina last year threw out a products liability claim brought 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 ruling leaves intact the Kuberts' claims against Best, who pleaded guilty to careless driving, improper use of a cell phone and failure to stay in the lane.

He was sentenced to probation, fined and ordered to visit area high schools and talk to students about the dangers of texting behind the wheel.

The Kuberts' attorney, Stephen 'Skippy' Weinstein of Morristown, says his clients will appeal. He adds that despite the dismissal, the Kuberts 'are gratified if by bringing the case, it has accomplished the goal of making people think before they text whether while driving or to someone who is driving.'

He says his clients have spoken about the dangers of texting while driving to students and to legislators who are considering bills aimed at the problem, including one partly named after them.

A-2199, known as 'Kulesh, Kubert and Bolis' Law,' creates an inference that illegal use of a cell phone constitutes reckless driving and increases the penalty for talking on a hand-held phone or texting while driving from $100 to $200 for a first offense to as much as $600 and a 90-day license suspension for a third offense.

The others for whom the bill was named were killed in accidents allegedly caused by the use of cell phones.

The Kuberts, who lived in Dover at the time of the crash, recently relocated to Florida.

McGlone, of Morristown's McElroy Deutsch Mulvaney & Carpenter, declines comment, as does Maryann McCoy of O'Donnell McCord in Morristown, who represents Best.

One can't be sued for allegedly helping to cause an accident by texting a driver, a New Jersey judge held on May 25 in a widely watched case.

In an oral opinion from the bench, Morris County Superior Court Judge David Rand granted summary judgment dismissing civil aiding-and-abetting claims against Shannon Colonna of Rockaway, finding she had no duty of care under the facts of the case, Kubert v. Best, MRS-L-1975-10.

Rand also said he searched for precedent and found nothing directly on point in New Jersey or elsewhere.

On Sept. 21, 2009, Kyle Best, then 19, was driving his pickup truck on his way home from teaching a swim class at the West Morris YMCA in Randolph when he lost control, crossed the yellow line in Mine Hill and hit David and Linda Kubert on their motorcycle.

David's left leg was torn off by the impact, while Linda's was left hanging and had to be amputated.

The Kuberts claimed that because Best was answering a text from her when he lost control, Colonna was electronically present in Best's pickup truck and thus, also at fault. They alleged that Colonna knew or should have known that Best was driving when she sent the text. She testified at her deposition that she 'may have known.'

The Kuberts contended that they merely sought to extend the established claim of civil aiding and abetting to a new set of factual circumstances by applying traditional tort concepts like foreseeability and proximate cause.

Best had clocked out from the YMCA at 5:41 p.m. and he and Colonna, then 17, exchanged three text messages by the time he reported the accident, eight minutes later.

Best texted Colonna at 5:47.56, Colonna texted back at 5:48.23 and he responded at 5:49.07. His call to 9-1-1 about the crash was made at 5:49.15.

Rand noted that it was Best who initiated the text exchange with Colonna that led up to the crash.

Best and Colonna sent each other a total of 62 texts that day. At a deposition taken before she was named as a defendant and retained her lawyer Joseph McGlone, Colonna testified she typically sent a total of more than 100 texts per day, adding 'I'm a young teenager. That's what we do.'

The Kuberts also argued that because of Colonna's close relationship with Best, she knew that his schedule as a student, swim teacher and volunteer firefighter and EMT put him frequently behind the wheel and that her texts to him were 'part of an ongoing pattern of daily, multiple text exchanges, many of which were likely to take place while Kyle Best was driving.'

Colonna's lawyer, McGlone, argued that no New Jersey case had recognized 'a duty not to send an electronic message to a person who is driving a car' and that it would be unfair and unworkable to impose a duty on texters because they have no control over when, where or how recipients will read and respond to their messages.

The closest case Rand found was Durkee v. Jett, 09-cv-449, in which a federal judge in the Western District of North Carolina last year threw out a products liability claim brought 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 ruling leaves intact the Kuberts' claims against Best, who pleaded guilty to careless driving, improper use of a cell phone and failure to stay in the lane.

He was sentenced to probation, fined and ordered to visit area high schools and talk to students about the dangers of texting behind the wheel.

The Kuberts' attorney, Stephen 'Skippy' Weinstein of Morristown, says his clients will appeal. He adds that despite the dismissal, the Kuberts 'are gratified if by bringing the case, it has accomplished the goal of making people think before they text whether while driving or to someone who is driving.'

He says his clients have spoken about the dangers of texting while driving to students and to legislators who are considering bills aimed at the problem, including one partly named after them.

A-2199, known as 'Kulesh, Kubert and Bolis' Law,' creates an inference that illegal use of a cell phone constitutes reckless driving and increases the penalty for talking on a hand-held phone or texting while driving from $100 to $200 for a first offense to as much as $600 and a 90-day license suspension for a third offense.

The others for whom the bill was named were killed in accidents allegedly caused by the use of cell phones.

The Kuberts, who lived in Dover at the time of the crash, recently relocated to Florida.

McGlone, of Morristown's McElroy Deutsch Mulvaney & Carpenter, declines comment, as does Maryann McCoy of O'Donnell McCord in Morristown, who represents Best.