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Lansing, Michigan

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Diego Avila
Diego Avila
Attorney •

Texting Case Tests the Limits of Liability – Texter Now Sued – Should Phone Manufacturers Be Next?

2 comments

You knew it was coming. Laws in many states have already made it illegal to text while driving. There have been plenty of lawsuits filed against negligent drivers who compromised their ability to keep other drivers and pedestrians safe by just having to read, respond to, or generate a text message on their phone while driving – sometimes on the highway, sometimes frequently while on the highway.

But in the back of my mind, I knew the next step had to be coming. The lawsuit against a person who sends a text message to someone while they are driving. And it's been filed and being argued in New Jersey, which has certainly suffered its fair share of injuries and casualties at the hands of a distracted, texting, oblivious driver.

David and Linda Kubert are still alive. What they lack, however, are each of their left legs. Both of them have lost their left legs after being struck by a 19-year-old boy who was texting while driving his pick up truck, causing him to cross the center lane and collide headfirst with the Kuberts while they were riding on a motorcycle.

Truck versus motorcycle is not fair. It wouldn't have happened if the 19-year old hadn't responded to a text message he received from a girl named Shannon Colonna. Now the attorney for the Kuberts has included her in his lawsuit on their behalf. The judge in that case will decide by May 25th if she should be held accountable for the Kuberts' injury. That's debatable, as the articles I've read suggest she may have known he was driving.

I have a free app for my Android phone called Dont_Text. It's fairly easy, simple to use, and automatically texts people back whatever message I preset when I turn on the app. But there are better, albeit expensive, options. The truth is – the technology is there to do it NOW for most phones out there. There is one app that specifically disables a phone's texting function when it detects the phone is moving faster than 10 mph. It's called Textecution.

The technology exists. Why isn't it being implemented?

My guess is phone companies don't want to actually upset customers with safety devices that go counter to what the high demand is all about. Why would they want to fully utilize the GPS capacities of their smart phones (if you have an Android Phone, iPhone, or most Blackberry phones your phone has this capacity) to keep everyone safe? A) It would diminish the number of texts that are received and sent, meaning fewer profits, and B) what cool kid wants the lame phone that won't let you text and drive?

God, who wants to avoid heart attacks just because my diet supplement is extremely hazardous? Sometimes, we pride ourselves too much on this notion of choice and freedom. It's not a freely made choice if we're already told what to want through billions of dollars of advertising, marketing, and slick placement in our favorite movies and tv shows.

I'm sure one day we'll get the standards well established on whether someone sending a text should be held liable for causing an injury when the person they are texting gets in an accident. But what I really hope is that one day, the industry that has all the power to stop it, is actually forced to do something about this growing epidemic.

2 Comments

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  1. Wayne Holden says:
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    IF this lawsuit is settled in favor of the two unfortunate people who lost their left legs, there will be millions of lawsuits against fast food businesses, radio stations, makeup companies and any other person or thing that can be talked to, eaten or done while driving.

    At no time is complete liability NOT the drivers responsibility, they are the one in control. This “leap of logic”, if successful, will make everyone liable, even if you just employ a person who is upset from something that happened at work and has an accident.

  2. Diego Avila says:
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    Mr. Holden, thank you for your comment. It appears that your argument goes exactly along with what I was suggesting is problematic when evaluating the policy considerations of distracted driving. Your reference to “[a]t no time is complete liability NOT the drivers [sic] responsibility” underscores the premise that “we pride ourselves too much on this notion of choice and freedom.”

    I can control what I put in my body, yet we still have regulations on alcohol, cigarettes, food, because as a society we benefit from government helping to keep us safe. Maybe radio stations shouldn’t be liable for distracted driving, but that’s not to say that categorically other companies that knowingly permit technology to be used in unsafe circumstances shouldn’t have an ethical and legal obligation to prevent that technology from being used in unsafe methods.

    Even the most basic overview between US and European/Japanese safety standards with automatic window devices tells us that part of the problem is corporate influence to slow down requirements to safety innovations.

    I’m glad we’re having this discussion now.