Suing the sender? Distracted driving lawsuit blames both texters for crash

The scene of a horrific accident in Mine Hill, N.J., where on September 21, 2009 a distracted driver hit a motorcycle head-on.
CBS News

(CBS News) If you're texting while driving and you have an accident - it's your fault. But what about the person who was texting with you? That question is at the heart of a lawsuit in New Jersey.

David and Linda Kubert's lives were shattered in seconds -- about the time it takes to send a text message.

"This is a senseless crash that didn't have to happen," David said.

Accident photos tell the story. On September 21st, 2009, the Kuberts were riding their motorcycle about a mile from their New Jersey home. A Chevy truck swerved across the center line and hit them head-on. And they saw it 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 said. "I looked down after the impact and my leg was torn off. I asked my wife is she was ok and she told me the bones of her leg were through her pants."

Both Kuberts lost a leg in the crash.

Kyle Best, then 18, pleaded guilty to three motor vehicle violations, including using a handheld device while driving.

Texting while walking banned in N.J. town

The Kuberts are now suing him as a distracted driver for civil damages -- and in a novel twist -- are also suing Shannon Colonna, his girlfriend, for sending him text messages while he was driving, and distracting him. Phone records show they exchanged 62 texts that day.

Skippy Weinstein, the Kuberts' lawyer, argues Colonna was "electronically present" in the crash. He says she should have known Best was driving home as they exchanged text messages leading up to the crash. She says she "may have known" he was driving.

"What I find interesting was her testimony at depositions was that she answered by saying, 'This is what teenagers do,'" Weinstein said.

(Watch analysis from Rikki Klieman in the video below.)

"I believe that if she knew he was driving and answering her back with texts, that she's partially responsible too," Linda said.

Lawsuits in distracted driving cases increasingly involve third parties. "We all know indeed it takes two people to text," said Dallas trial lawyer Todd Clement. With a specialty in distracted driving, Clement argues the text sender could be held liable.

"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," Clement said. "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."

The lawyers representing Colonna didn't return calls or emails from CBS News. But their legal brief argues the Kuberts suit against her is a "leap of logic," and should be dismissed.

The Kuberts say both text senders and receivers need to be held accountable. "If we get this out to the public, and hopefully we are, maybe somebody won't end up like us. Or worse," David said.

Thirty-eight states have banned texting behind the wheel. Government statistics say 24 percent of vehicle crashes can be attributed to phone use while driving.

Friday, a New Jersey judge will decide whether the Kuberts have a case against the sender of the text message.

Legal analyst Rikki Klieman thinks the case shouldn't have a chance at this stage. "We do have sanctions against people who text while driving," Klieman said Wednesday on "CBS This Morning." "We do not yet have any against those who send the text. And judges shouldn't be in the business of lawmaking."

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    Mark Strassmann

    Mark Strassmann has been a CBS News correspondent since January 2001 and is based in the Atlanta bureau.