Texting while driving is illegal in 38 states, but a pending court case in New Jersey may determine whether there are legal ramifications to texting someone when they're behind the wheel.
In 2009, Kyle Best got into a car accident while replying to a text sent by Shannon Colonna.
Best, who was 19 at the time, was behind the wheel of his pick-up truck and, as he texted, drifted into opposing traffic and slammed into David and Linda Kubert's motorcycle.
The Kuberts both lost their left legs as a result from the collision and have brought a suit against Best for his role in the injury.
Now, in what could be a precedent-setting case, lawyer Stephen "Skippy" Weinstein has expanded the complaint to also include Colonna.
"They were texting back and forth like a verbal conversation," Weinstein told ABC News. "She may not have been physically present, but she was electronically present."
Not surprisingly, Colonna's lawyer, Joseph McGlone, is arguing that his client shouldn't be part of the suit.
On Friday, he asked Morris County Superior Court Judge David Rand to dismiss charges against Colonna, saying she owed no legal "duty of care" under the facts of the case, the Morris County Daily Record reported.
"The sender of the text has the right to assume the recipient will read it at a safe time," McGlone argued in court. He said there is no court ruling anywhere in the country that says a text-sender is liable if the receiver causes injury while reading the message.
"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 said.
Although Colonna said in a deposition that she didn't know whether Best was driving when she texted him on Sept. 21, 2009, she also said she "may have known."
Weinstein pointed out that Colonna didn't seem to realize the dangers of texting while driving or texting someone who is driving.
"What I found interesting was her testimony at depositions that this is what teenagers do," Weinstein told WABC-TV.
Evidence in the case shows the pair exchanged more than two dozen texts during the day and Weinstein argued that Colonna should have been aware Best was driving when he resumed texting her after staying off the phone about five hours while he worked.
According to a deposition, Best said that at the time of the crash he glanced down at his cell to see who texted him, but a time sequence of the exchanged texts read in court show he was the last to text before the crash.
McGlone told the court that cellphone analysis showed that Best texted Colonna seconds before 5:48 p.m. She responded 31 seconds later. Best texted her back, and seconds later he called 911 to report the collision.
According to the sequence, there was no intervening text from Colonna between Best's last text to her and his 911 call, the Daily Record reported.
Earlier this year, Best pleaded guilty in Montville Municipal Court to three motor vehicle summonses that arose from the crash: using a hand-held cellphone while driving, careless driving and failure to maintain a lane.
Although his driver's license was not suspended, Best's punishment included $775 in fines and he was ordered to speak to 14 high schools about the perils of texting and driving.
Judge Rand is expected to make his ruling on May 25 about Colonna’s potential liability in the accident but, meanwhile, McGlone argues that case law examples do not support the duty of care Weinstein contends Colonna should have shown.
A passenger, for example, can be held liable for a crash if he encourages a young driver to speed or ignore traffic signals, but Colonna had no control over Best's conduct since she wasn’t in the car, he said.
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The Huffington Post | By David Moye Posted: 05/08/2012 7:55 pm Updated: 05/09/2012 12:14 pm