Judge’s Decision on 3rd Party Texting Saves Risk Managers from Sleepless Nights – For Now

31 May, 2012 Bob Wilson


Picture this scenario: Your employee sends a text message to a customer. The customer happens to be driving when they get that message. While reading that message, they have an accident and injure someone.

Could your company be liable for causing the accident?

A case tested that theory in New Jersey this month, but the judge ruled against the petitioner, narrowly avoiding yet another reason to keep risk managers up at night. A lawyer there had made the case, comparing the sending of text messages to a driver as being similar to a bartender giving too many drinks to someone they know will be driving.

Legal experts said at the time that the argument did have some merit, depending on how laws were interpreted.

The case was based on a crash that happened in 2009. Shannon Colonna sent a text to Kyle Best. Best, 19, while reading the text drifted into oncoming traffic and hit David and Linda Kuber. Both of the Kubers were severely injured, each losing a leg in the crash.

The Kubers hired Lawyer Skippy Weinstein –

Ok, we interrupt this article for just a moment. The legal field is one filled with strength and bravado, with lawyers always trying to figure out a way to look and sound “tougher”. I don't need a lawyer, but if I did, I would definitely want one named Skippy. Clearly he is a man comfortable in his own skin. It would be great, if I have a conflict with someone and need to threaten them with legal action – “I'm going to have Skippy kick your ass! Sic ‘em Skippy!

I'd love to see his television commercials – “Don't let the insurance companies push YOU around! They have lawyers on their side, let SKIPPY be your man!” (Scene cuts to dazed, confused insurance company representative, battered with bandages and a black eye) “Boy, we really got whipped by Skippy!

I did a little research, and it appears Skippy is a highly successful, AV rated attorney who has earned many accolades, so all the better.

But I digress….. I now return you to our regularly scheduled article, already in progress.

Their lawyer, Skippy Weinstein, said in the filing that Colonna could have prevented the crash and injury to the Kubers by not texting Best while he was behind the wheel of a car.

According to msnbc.com, Skippy said “She was not physically in the vehicle but she was electronically present, she and he were assisting each other in a violation of the law.” Colonna's attorney indicated that his client had no way of knowing when Best would read the text, and maintained the responsibility for safe conduct is on the recipient.

Clearly the judge disagreed with Skippy.

Can you imagine if the outcome of this trial had gone the other way? It would certainly have ramifications for businesses across the nation. Imagine the rule changes we would need to implement.

Texting: You may only text people within thirty feet of you and only if they are visible at all times. Prior to sending any text or instant electronic message, you are responsible for ensuring that the recipient is not operating heavy machinery, engaged in sexual activity or other potentially hazardous situation, and has their tray table up and seatback in a full and upright position. Once confident that the proposed text recipient meets the appropriate parameters, you must complete form 3469-T and submit to the Text and Instant Messaging Evaluation Sub Committee (TIMESuC) for consideration and approval. Once TIMESuC has reviewed and approved proposed text and or instant electronic message, you may proceed. Happy texting!

Even though this decision can be viewed as favorable for risk managers and anyone with a shred of common sense, the issue may return again at some point. Really, with all the discussion in the industry today about controlling or preventing distracted driving in our workforce, the thought that we could be liable when the text we send causes an accident should keep us all up at night. And knowing that Skippy is on the opposing side of this issue is just more reason for concern.


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