A New Jersey couple has filed a civil lawsuit against both the driver who hit them and his girlfriend because they were texting each when the couple was thrown from their motorcycle by the driver's car, according to CBS.

On Sept. 21, 2009, David and Linda Kubert were hit head-on by a Chevy truck when it swerved across the center divide and hit them while they rode on a motorcycle about a mile from their New Jersey home.

David Kubert said that he saw the collision coming.

“What I saw was a gentlemen in the truck steering with his elbows, with his head down. And I could tell he was text messaging,” David Kubert told CBS News. “I looked down after the impact and my leg was torn off. I asked my wife if she was okay and she told me the bones of her leg were through her pants.”

The crash left both of the Kuberts without one of their legs.

In the ensuing criminal case the driver, Kyle Best, then 18 years old, pleaded guilty to using a handheld device while driving.

Now, in the civil case the Kubert's have sued Best for distracted driving and have also sued his girlfriend, Shannon Colonna, for sending him text messages while he was driving, which the couple alleges caused Best to become distracted.

Many are considering this a landmark case because the sender of a text message has never been held civilly liable in a distracted driving case.

“I believe that if she knew he was driving and answering her back with texts, that she’s partially responsible, too,” Linda Kubert said.

According to the complaint, phone records show that the couple exchanged 62 texts that day and although it is not apparent from the individual texts, Colonna said in her deposition that she “may have known” that Best was driving.

“It seems to make sense that both people involved in the activity could very well be liable including the sender who is not actually behind the wheel,” Todd Clement, a lawyer who specializes in distracted driving cases, told CBS News.

“As this case goes forward, I think what you’re going to see is a new awareness throughout the country. A new responsibility on the part of both the sender and the receiver of the text message not to continue this kind of negligent activity,” he added.

The National Highway Transportation Safety Administration reports that 3,092 people were killed in distracted driving related crashes in 2010 and an estimated additional 416,000 were injured in similar crashes in the same year. The NHTSA also reported that text messaging creates a crash risk 23 times greater than those driving not distracted.

Under New Jersey law, texting and talking on a cell phone is banned for drivers, but the Kubert's think that this should be extended to the party on the other end of the telephone.

“If we get this out to the public, and hopefully we are, maybe somebody won’t end up like us both or worse,” David Kubert said.

In their legal briefs, lawyers for Colonna called the suit a “leap of logic” and said it should be dismissed.

A judge is expected to rule by the end of the week.

If the judge decides to impose liability on the sender of text messages in this case it may have huge implications nationally as those sending texts will have to think twice before they decide to do so as a result of the potential threat of civil liability.

The threat of paying monetary damages in these types of cases would undoubtedly deter those on the other end from texting drivers.

However, expanding liability would create a fact-intensive case-by-case analysis and ultimately increase the number of cases on the court docket. Especially in those cases where the driver is insolvent and the plaintiffs are looking to collect damages from a sender who has deeper pockets.

Accordingly, it will be interesting to see whether the judge feels that the time is now to expand the scope of liability in these distracted driving cases.

What do you think?

 

 

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