Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

Yesterday's featured case involved the question of duty.  Sticking with that theme, I thought I'd bring to your attention another duty case, this time in the tort context.

One of the first lessons I learned in Torts class is the notion that foreseeability does not define the scope of the legal duty in tort.  For example, if I negligently caused an auto accident such that the highway patrol had to shut down the Long Island Expressway, it is certainly foreseeable that people in the cars behind me might miss a business meeting, fail to deliver a pizza on time, or miss their own wedding.  But tort law does not impose a duty on me to avoid those consequences for other people, even though they may result in financial loss.  Rather, tort law imposes a duty on me only to avoid negligently causing injury to a person or property.  Without personal injury or property damage, the fact that one of the drivers behind me was inconvenienced (or even financially impacted) simply does not give rise to a legal claim. 

In Sanders v. Norfolk So. Ry. Co., 2010 WL 4386881 (4th Cir. Nov. 5, 2010) (unpublished per curiam affirmance), the Fourth Circuit was squarely faced with the duty question.  (I should note that some of my colleagues were involved in this case.)  A train had derailed in a small town, causing a chlorine leak.  People within a one-mile radius were under a mandatory temporary evacuation order, and people within a two mile radius were under a temporary "shelter in place" order.  (The railroad quickly agreed to a class action settlement for those who were directly impacted.) 

But people who lived within a two-to-five mile radius of the crash site wanted a payday, too, so they filed a putative class action suit.  The defendant moved to dismiss, the trial court granted the motion, and the Fourth Circuit agreed.  The Fourth Circuit explained that:

South Carolina recognizes reasonable limitations on tort liability in negligence actions where the plaintiffs have suffered no personal injury and have no direct relationship with the tortfeasor. . . .

. . . While Appellants may have properly pled that their injuries were foreseeable, foreseeability alone may not give rise to a duty under South Carolina law. . . . 

Here, the only injuries alleged by Appellants are those directly related to their non-mandatory evacuation or temporary retreat from their homes.  While these harms may have been foreseeable by [the defendant], we agree with the district court that they are too remote to warrant a finding of legal duty.

Id. at *2 (citations omitted).

Similarly, the court affirmed the dismissal of the nuisance claims.  Dismissal of the public nuisance claim was proper because the plaintiffs had not alleged that their real or personal property was damaged by the accidental chlorine gas release.  And dismissal of the private nuisance claim was proper because the "release was a singular event and did not continuously keep them out of their homes."  Id. at *3.

Sanders is a reminder that foreseeability is not the equivalent of duty in tort law, and that the duty concept serves to cut off liability for harms that are simply too remote or attenuated from the challenged conduct.

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One of the first lessons that first year law students learn in torts class is that tort liability does not extend to all harms caused by a tortfeasor, and we do not owe duties to the world at large.  Indeed, if it were otherwise, we each would be insurers for harm that we may cause to others, no matter how remote or speculative the claim. 

Rather, tort law imposes concepts such as duty, foreseeability, and proximate causation to limit a tortfeasor’s ultimate liability to certain people to whom he owed a duty who suffered personal injury or property damage proximately caused by the tortfeasor's conduct.  Pure economic harm (such as lost profits) is deemed too remote and speculative to be compensable in negligence without some sort of accompanying physical injury or property damage.   Thus, a driver who causes a traffic accident is not liable to the hundreds of people stuck behind him on a closed freeway who may have missed a meeting, failed to make a delivery, or missed a concert that they had expensive tickets for.  He is liable, however, to the person who was physically injured, and to any other person whose car was damaged in the crash.

Last week the Florida Supreme Court issued an opinion that reflects a serious debate about the limiting principles of tort law.  See Curd v. Mosaic Fertilizer, LLC, 2010 WL 2400384 (Fla. June 17, 2010).  The fact that it comes from a case in which commercial fishermen were seeking damages for pollution of the ocean ensures that we will be hearing more about it in litigation over the Gulf of Mexico oil spill.

In Curd, a fertilizer manufacturer owned a phosphogypsum storage area near a tidal estuary in Florida.  The property had a wastewater storage area that was overfilled, and the dikes around the pond were narrower than they were supposed to be.  State and local authorities warned the company that the facility was in danger of a spill if there were even a few inches of tropical rain.  As predicted, rains came, the dike gave way and pollutants ultimately spilled into Tampa Bay, allegedly killing the fish that commercial fishermen relied upon for their livelihood.

The fishermen sued, asserting common law negligence and a claim under Florida Statute section 376.313, which permits people to bring a private cause of action for damages from the discharge of pollutants.  The intermediate court of appeal had held that the fishermen could not sue, as they had not suffered personal injury or property damage.  After all, they did not own the fish in the sea.

The Florida Supremes reversed.  Analyzing the plain language of the statute, they held that "damages" were not only physical injury and property damage, but also damage to the environment, including living creatures.  The statute allowed anyone to sue for such harm.  Moreover, following some earlier precedents, the court held that the liability under the statute was strict liability, and certain affirmative defenses ordinarily available at common law would be unavailable against the statutory claim.  The court reasoned that the Legislature created a remedial scheme that should be liberally construed to allow any person who could demonstrate "damage" from a discharge to bring a claim.

The court also rejected the argument that the fishermen’s claim was barred by the economic loss doctrine.  This was not a commercial transaction where warranty law could be expected to govern the parties’ expectations, the court reasoned, and the defendant was not a product manufacturer that had produced a product which injured only itself.  As such, the court held that the principles underlying the economic loss doctrine simply did not apply to the case.

As for the negligence claim, the commercial fishermen, the court noted, were not like the public at large, in that they had a license from the state to regularly harvest the fish in Tampa Bay for profit.  The court cited a series of common law decisions holding that fishermen suffered a special or unique harm – “a diminution or loss of livelihood” – which was not suffered by the public at large.  This was sufficient to form a common law duty, the court reasoned, when combined with the foreseeability of a Tampa Bay release causing harm to Tampa Bay fishermen.

Justice Ricky Polston partially dissented and partially concurred.  He agreed with the majority’s reading of the statute, including the fact that it should be liberally construed:  “If the statute is overly broad as suggested by the [court below], that is an issue for the Legislature to address.” 

But Justice Polston disagreed with the majority when it came to the common law claim for negligence.  He began by noting that the Florida Supreme Court previously had abrogated the traditional tort requirement that a plaintiff suffer a personal injury or property damage.  See Indemnity Ins. Co. v Am. Aviation, Inc., 891 So.2d 532 (Fla. 2004) (“in general, actionable conduct that frustrates economic interests should not go uncompensated solely because the harm is unaccompanied by injury to a person or other property”).  In light of this radical departure from traditional tort law, Justice Polston argued that “the function of the duty element takes on a greater role to filter out the unwarranted claims.” 

According to Justice Polston:

Commercial fishermen in Florida do not have a ‘special’ interest within the ‘zone of risk’ the majority finds [the defendant] to have created.  Rather, commercial fishermen are few among the tens of thousands of Floridians who earn their living from healthy ocean waters.  For example, in 2006, beach tourism alone contributed $24.1 billion to the state’s economy and provided 275,630 Floridians with jobs, earning them $7.7 billion. . . .

Although the majority rules that the commercial fishermen’s state licenses set them apart from the general population, if every state-licensed Floridian has a ‘special’ or ‘unique’ interest, then it seems there is endless ‘foreseeable’ liability.  Commercial fisherman are a small group among thousands of licensed Floridians who can claim economic damages from pollution of coastal waters.  For example, hotels and restaurants near the beach, seafood truck drivers, beach community realtors, and yacht salesmen are all licensed by the State to conduct commercial activities that may be negatively affected by the pollution of coastal waters.  Because the commercial fishermen have not demonstrated that [the defendant] owed a specific, unique duty to protect their purely economic interests, I would disallow common law recovery in order to avoid subjecting defendants to limitless liability to an indeterminate number of individuals conceivably injured by any negligence.

This question – what constitutes a “special interest” that would give rise to a duty over and above any so-called duty to the general public – will no doubt be hotly litigated in the wake of the Gulf of Mexico oil spill.  Notably, the Curd opinion may not have answered that question as broadly as plaintiffs may think.  As Justice Polston pointed out at the beginning of his partial concurrence, the majority deliberately limited the scope of its opinion.  Although the putative class included all persons engaged in the catch or sale of fish, the opinion is limited to commercial fishermen and “does not extend to distributors, seafood restaurants, fisheries, fish brokers, or the like who may have been affected by [the defendant’s] pollution,” Justice Polston observed.  The opinion also was limited to the depletion of marine life and did not cover the “harm to reputation as alleged in the petitioner’s complaint and mentioned by the [intermediate court of appeal].”  Thus, even in Florida, defendants still may have strong arguments regarding the limiting principles of duty, foreseeability and proximate cause. 

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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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