File under "I Told You So": Oklahoma Court Affirms Dismissal of Claim Against Mobile Phone Providers for Failure to Warn of the Dangers of Distracted Driving
Matt Richtel over at the New York Times has a real interest in the subject of auto accidents associated with driving while talking on or texting with a mobile phone, having written a whole series of articles called Driven to Distraction. A little over a year ago, he wrote an article about a case in Oklahoma where a woman's estate sued Sprint/Nextel (the wireless provider) and Samsung (the phone manufacturer) for a death caused by their customer, who ran a red light while talking on his mobile phone. The theory of liability was that the defendants' failure to warn the distracted driver of the dangers of driving while using his mobile phone caused the accident and the decedent's death.
The article quoted a law professor talking about how compelling the claim was. I, however, was included in the article, throwing cold water on the claim based on the common knowledge defense. Subsequently, I wrote a blog post detailing more defense arguments, starting with the absence of a duty. And I quoted the excellent decision on duty in this context, Williams v. Cingular Wireless, 809 N.E.2d 473 (Ind. App. 2004).
Well guess what? The Oklahoma trial court ultimately granted the defendants' motion to dismiss the Oklahoma lawsuit. It was then sent by expedited appeal -- with no new briefing -- to the intermediate appellate court, which affirmed the decision on December 9, 2010. See Estate of Doyle v. Sprint/Nextel Corp., Case No. 108,648, Slip op. (Okla. Ct. Civ. App. Dec. 9, 2010). On February 23, 2011, the Oklahoma Supreme Court decided not to hear the appeal and directed that judgment should be entered consistent with the lower court's decision.
The Court of Civil Appeals concluded that the wireless provider and the mobile phone manufacturer owed no legal duty to the plaintiff's decedent. She was not their customer; they had no legal or contractual relationship. Slip op. at 4. The court relied heavily on Williams and the policy arguments made therein, including that court's conclusion that it was not legally foreseeable that the sale of a cell phone would result in a fatal automobile accident. Id. at 7. Moreover, the public policy against making mobile phone providers insurers against driver inattention "'would effectively require the companies to stop selling cellular phones entirely because the companies have no way of preventing customers from using the phones while driving.'"
It bears noting that the court's analysis was solely of a negligence cause of action, because that is what plaintiff asserted. But as the Restatement (Third) of Products Liability recognizes, there is no real difference between strict liability failure to warn and negligent failure to warn.
The court also discussed the complete lack of causation -- which is the flip side of the foreseeability argument -- in light of the duties imposed on drivers by Oklahoma law to "devote [their] full time and attention" to driving, "use ordinary care to prevent injury," and "exercise ordinary care in keeping a lookout consistent with the safety of other vehicles." Slip op. at 10. Ultimately, however, the court refused to reach the causation question because it was unnecessary in light of the court's holding no duty existed as a matter of law.
The Court of Civil Appeals' decision in Doyle is a strong demonstration that trying to use civil legal duties to make the US a Nanny State is simply wrongheaded. Legal duty does not extend as far as foreseeability, and where statutes impose duties on drivers to avoid inattentive driving, product sellers are entitled to expect the driver to fulfill his legal obligations. There would be no principled end to imposing a legal duty on mobile phone companies to prevent others' inattentive driving: McDonald's would be vulnerable for their drive-in windows, cosmetics companies for their portable make-up, and Victor Kiam -- God rest his soul -- for battery-charged razors. Public policy weighs against such onerous rules. Legal responsibility for inattentive driving rests with the inattentive driver, which is as it should be.