You may not know it, but I'm famous! Well, not really famous -- but I was mentioned in the New York Times yesterday. And well, it wasn't really me, but my doppelganger. They screwed my name up, calling me "Jackson Russell." Nevertheless, there I was, sort of, being part of an article about a woman who has sued a mobile phone manufacturer and a mobile service provider because, according to the three-page complaint, they "failed to properly warn of the hazard of cell phone use while driving that created a reasonably foreseeable risk of an accident," allegedly resulting in an accident that killed the plaintiff's mother. The plaintiff has sued in Oklahoma state court for compensatory and punitive damages in excess of $10 million.
My brief mention in the article was on the common knowledge defense. It is commonly known that using a handheld mobile phone without a hands-free device increases the risk of accidents. Manufacturers warn about it in the product literature. Service providers post billboards about it. Governmental authorities and public interest groups erect signs warning against it. And most notably, it is illegal, and all licensed drivers are charged with knowledge of that law. On this point, tort law is clear: one has no duty to warn of a commonly known hazard. And what sort of warning would possibly alter the behavior of the driver who insists on using a hand-held mobile phone while possessed of the common knowledge about the risks? Simply put, there is none.
Interestingly, the Times reporter actually spoke with the driver of the truck that collided with the plaintiff's mother, who had pled guilty to negligent homicide. The driver does not blame the mobile phone company, and is quoted as saying: "It's our choice if we're going to talk on the cellphone while driving or walking down the street or in the office."
The article about the Oklahoma lawsuit appeared with a much larger article in the author's "Driven to Distraction" series, entitled "Promoting the Car Phone, Despite Risks." This article reads like a plaintiff's complaint, attempting to establish "who knew what when" and pairing the history of marketing for early mobile phones called "car phones" and the scientific research about the risks of distracted driving. It continually suggests that using hands-free devices does not eliminate the risk of using mobile phones while driving because the problem is "the distraction that comes from focusing on a conversation, not the road." (Of course the same could be said for conversations with passengers, as well as the distraction that results from eating fast food, drinking beverages, singing along with the radio, putting on make-up or operating an electric razor while driving.) The article mentions critics who demand "placing overt warnings on the packaging and screens of cellphones." But in the end, drivers are charged by law with the duty to operate their vehicles responsibly and focusing on the road, regardless of the potential activity that may distract them, and regardless of whether they are "warned" to do so.
In light of the larger Times article, I thought it might be useful to offer more analysis of such claims, rather than my doppelganger's mere mention of the common knowledge doctrine. To begin with, it would be tough for the plaintiff in a case such as this to establish a legal duty running from the phone manufacturer -- and particularly the service provider -- to someone other than their customer. A product seller does not owe a duty to the world, and particularly where the product has functioned properly and injury has resulted only from the purchaser's misuse of the product, there can be no duty imposed on the product seller. This is true in cases where firearm manufacturers are sued for injuries caused to third parties from criminal activity, and it presumably would be true if a plaintiff sued McDonald's for causing driver distraction by selling a billboard-advertised "extra value" meal to a driver from the "drive-thru" window.
Similarly, any duty running from the product seller to the purchaser who injures himself driving while using a hand-held mobile phone may be extinguished in many states by the illegal acts doctrine, which basically holds that a person who injures himself performing an illegal activity may not sue to recover for injuries incurred during that illegal activity.
Moreover, finding a viable cause of action will be difficult for mobile phone plaintiffs as well. There are two basic product liability theories that could be asserted in these cases: (1) design defect, and (2) failure to warn. The design defect claim hardly seems plausible. Although the "Promoting the Car Phone" article describes one engineer who suggested in the 1960s that there be a lock on the dial to prevent dialing while driving, the simple fact is that it would be difficult to posit a feasible alternative design that did not also detract from the benefits of having a mobile phone in the car. It is recognized that mobile phones contribute to automobile safety by allowing us to report dangerous driving and accidents, obtain emergency roadside repairs, and receive directions in unfamiliar locations without consulting maps. Indeed, there have been lawsuits against some automobile manufacturers seeking to impose liability for not having digital mobile assistance capabilities in their cars, and one Oklahoma court even refused to dismiss a cause of action against a mobile service provider who failed to provide a customer with triangulation information to help locate the customer's mother, who had disappeared on the way to the doctor and, allegedly as a result of the delay in locating her, lost the opportunity for rescue and medical attention. See Frey v. AT&T Mobility LLC, 2008 WL 4415328 (N.D. Okla. Sept. 23, 2008).
As I previously noted, the failure to warn theory would be difficult not only because of common knowledge about the risks of using hand-held mobile phones while driving, but also because the mobile phone manufacturers already include such warnings in their product literature.
Actual causation and proximate causation also would be extremely difficult to prove. What kind of warning actually would change the conduct of a driver who, in this day and age, insists on using a hand-held mobile phone while driving? And given the remoteness of the manufacturer and the service provider from the injured plaintiff -- and the intervening illegal conduct of the driver -- can there be causation as a matter of law?
The few cases to have addressed the question squarely answer the question in the negative. For example, in Williams v. Cingular Wireless, 809 N.E.2d 473 (Ind. App. 2004), a plaintiff sued a mobile phone company for giving its customer a mobile phone that the customer was using when he collided with the plaintiff. The court first concluded that there was no relationship between the mobile phone company and the plaintiff that would give rise to a legal duty on the company to protect the plaintiff. Moreover, even though many states were adopting statutes that made driving while using a hand-held mobile phone illegal, the court held that there was no foreseeability:
Although we agree that it may be foreseeable that a person who is using a cellular phone while driving might be in an accident, we do not agree with the leap in logic Williams urges us to make that it is likewise foreseeable to a legally significant extent that the sale of the phone would result in an accident. A cellular phone does not cause a driver to wreck a car. Rather, it is the driver's inattention while using the phone that may cause an accident. Drivers frequently use cellular phones without causing accidents, and, of course, cellular phones are used in all sorts of places other than in vehicles. We do not conclude that there was a high degree of foreseeability that the sale of the phone would result in an accident.
Id. at 478 (citation omitted).
The court went on to consider where public policy requires placing the responsibility for safe driving:
Simply because an action may have some degree of foreseeability does not make it sound public policy to impose a duty. For example, many items may be used by a person while driving, thus making the person less attentive to driving. It is foreseeable to some extent that there will be drivers who eat, apply make up, or look at a map while driving and that some of those drivers will be involved in car accidents because of the resulting distraction. However, it would be unreasonable to find it sound public policy to impose a duty on the restaurant or cosmetic manufacturer or map designer to prevent such accidents. It is the driver's responsibility to drive with due care. Similarly, Cingular cannot control what people do with the phones after they purchase them. To place a duty on Cingular to stop selling cellular phones because they might be involved in a car accident would be akin to making a car manufacturer stop selling otherwise safe cars because the car might be negligently used in such a way that it causes an accident.
. . . Ultimately, sound public policy dictates that the responsibility for negligent driving should fall on the driver. Legislation has already been drafted to address the issue of cellular phone use while driving and to place the responsibility on the driver to refrain from doing so. We are confident that the legislature is taking appropriate measures to protect public safety, and that is both its right and duty.
Id. at 478-79; see also Steele v. Cingular Wireless LLC, 2007 WL 2456104 (Cal. App. Aug. 30, 2007) (describing trial court's demurrer on plaintiff's claim that mobile phone provider owed a duty to plaintiff, who was injured in an accident allegedly caused by the provider's customer while talking on a mobile phone).
At the end of the day, I don't expect lawsuits against mobile phone companies for traffic-related harm to gain much traction. The problems with duty, foreseeability, and causation are simply too great to make this a lucrative area for litigation. The simple fact is that there are many potential distractions for drivers: fast food, beverages, the radio, electronic billboards, and mobile phones, just to name a few. But the legal responsibility for driving safely and avoiding dangerous distractions rests with the driver, and as a matter of public policy it simply makes no sense to impose on product manufacturers liability that would simply be passed through to their customers in the form of increased prices.
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