Negligence: The failure to use such care as a reasonably prudent and careful person would use under similar circumstances.

In 2009 the lives of David and Linda Kubert were irreversibly changed for the worse when a vehicle driven  by a distracted driver plowed into their motorcycle and severed a leg on each of them. The driver, a high school student named Kyle Best , had exchanged 62 text messages with his girlfriend, Shannon Colonna , in the hours leading up to the crash.

What is notable about this case is that the Kuberts sued not only Best for negligence, but Colonna as well.

In 2008, I wrote about this potentially emerging area of law. Could a person who sent the text or made the phone call be liable if the person on the other end has an accident and hurts somebody?

It’s a theory that is being seriously considered by a New Jersey appeals court after a trial court threw out a claim brought by the Kuberts against Colonna. The case hinges on whether Colonna can be found negligent if, when she sent the texts, she knew that the recipient was driving – and therefore might be distracted, and therefore hurt or kill somebody.

Colonna and her lawyer deny any culpability . In an American Bar Association Journalarticle, Colonna’s attorney, Joseph McGlone, asserted that “My client doesn’t know he’s driving, she doesn’t know his schedule, she can’t control when Kyle Best reads the message.”

Mr. McGlone’s comments to the Journal , though, were tempered during oral arguments, in which one member of the three-judge panel reasoned “…she shouldn’t send it to begin with if she knows that he’s driving.” This suggests that if there’s any possibility – if you have any reasonable idea that the person you’re sending a text to is driving – then you shouldn’t do it.

To prove negligence in the case of Kubert v. Colonna , the Kuberts would need to show that Ms. Colonna knew or should have known that the intended recipient was driving. This might be proven from the context of the text messages. Which brings me to my last point.

Attorneys getting involved in a case like this should alert the lawyer on the other side that they need to preserve the texts. Once the lawsuit starts, the appropriate discovery demand should be served to follow-up and make sure that those texts aren’t lost, because they may be some of the few pieces of evidence available to help prove such a case.

While it may be difficult to prove that any sender of a text knew that the recipient was behind the wheel at a given time, the acceptance of such a theory could act as a deterrent to get the general public thinking more in terms of safety. Before you go to text your pal, just think: Is he or she likely to be behind the wheel of a car? Just give it an extra moment of consideration before tapping the Send button .

We’re here to listen.

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