Activity 4 Memo

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Jan 9, 2024

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Memorandum To: Senator Abigail Bronson, Setonia Senate - Majority Leader From: Jada Porter, Legislative Aide Re: Liability for Texting Drivers from Remote Location Date: December 8, 2023 Question  Can a person who is texting a driver from a remote location be held liable for persons injured because the driver was distracted by the text message? Brief Answer  The recommendation advises against a bill that holds a person liable for texting a driver from a remote location. Sending a text message does not actively encourage a driver to become distracted and violate the law. As established in the Kubert v. Colonna lawsuit, the responsibility to avoid distractions while driving should primarily rest with the driver. Facts  A bill has been proposed to the Setonia Senate, suggesting to impose liability for those who text drivers from a remote location. This bill is based on the decision of Kubert v. Best (2013). Discussion  On September 21, 2009, plaintiffs David and Linda Kubert were riding a motorcycle when defendant Kyle Best’s pickup truck crossed into their lane and caused a severe collision. Kyle Best caused this accident by responding to a text message he received

from his friend, Shannon Colonna while driving. The left leg of David Kubert became “severed or nearly severed” and the left leg of Linda Kubert became shattered with a protruding thighbone. Both plaintiffs suffered a loss of their left leg (Kubert v. Best 75 A. 3d 1214, 432 N.J. Super. 495 (2013). In their lawsuit against defendant Kyle Best, the plaintiffs asked the court to impose additional liability against defendant Shannon Colonna, who sent several text messages to Kyle Best while he was driving. The plaintiffs claim that Colonna “aided and abetted Best’s unlawful texting while he was driving” (Kubert v. Best 75 A. 3d 1214, 432 N.J. Super. 495 (2013). They also argue that Colonna had “an independent duty to avoid texting to a person who was driving a motor vehicle” (Kubert v. Best 75 A. 3d 1214, 432 N.J. Super. 495 (2013). The court confirmed that there is a legal duty to “not text someone who is driving if the texter knows, or has a special reason to know, the recipient will view the text while driving” (Kubert v. Best 75 A. 3d 1214, 432 N.J. Super. 495 (2013). In the final appeal decision, the court dismissed by ruling that the plaintiffs’ evidence was not sufficient enough to prove that defendant Shannon Colonna knew Kyle Best was driving. Therefore, Colonna would not be held liable for sending a text message to Best “immediately before the accident” (Kubert v. Best 75 A. 3d 1214, 432 N.J. Super. 495 (2013). The court relied on previous decisions to come to this conclusion. In Champion v. Dunfee 398 N.J. Super. 112 App. Div. (2008), the plaintiff was injured in a car crash as a backseat passenger in their friend’s car. The driver negligently traveled at a dangerously high speed while intoxicated, which caused the accident. The plaintiff filed a lawsuit against their friend, who was the driver, and the driver’s girlfriend, who was the front seat passenger in the vehicle. The plaintiff

included the driver’s girlfriend in the lawsuit alleging that “she had a duty to prevent her boyfriend from driving because she knew he had been drinking” (Champion v. Dunfee 398 N.J. Super. 112 App. Div. (2008). In the Champion case, the court considered two conditions to determine liability, “a special relationship that gave the passenger control over the driver’s conduct” and “that the defendant passenger actively encouraged the driver to commit the negligent act” (Champion v. Dunfee 398 N.J. Super. 112 App. Div. (2008). The court concluded that the defendant’s failure to prevent the driver’s wrongful actions was insufficient to prove her liability in the accident. The Champion decision held that the driver’s accompanying girlfriend would not be held liable for the plaintiff’s injuries. Similarly, this court found no special relationship as highlighted in the Champion case between Shannon Colonna and Kyle Best. Therefore, Colonna did not have control over Best’s negligent actions. Furthermore, the plaintiff did not provide evidence which proves that Colonna encouraged Best in any way to send a text message while he was driving. The court did not find the text messages that Colonna sent to Best as “active encouragement that the recipient read the text and respond immediately, while driving and in violation of the law” (Kubert v. Best 75 A. 3d 1214, 432 N.J. Super. 495 (2013). In Podias v. Mairs 394 N.J. Super. 338 App. Div. (2007), two passengers accompanied an 18 year old intoxicated driver who struck a motorcyclist. Despite having accessible cell phones in their possession, the two passengers did not attempt to call emergency services to assist the injured and unconscious motorcyclist. The passengers advised the driver against calling the police at the scene to avoid any further involvement in the incident. All three parties proceeded to flee the scene of the accident and later,

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