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Monday, December 07, 2009

Courts - "A Victim’s Daughter Takes the Cellphone Industry to Court "

That is the headline to this Dec. 6th NY Times story by Matt Richtel that begins:

Questions about how much the wireless industry knew about the risks of distracted driving are not academic — at least not to Jennifer Smith.

Ms. Smith’s mother was killed last year when her car was hit by a driver talking on his cellphone. Ms. Smith, 35, has sued the companies that provided the driver’s phone and wireless service.

She hopes to prove that the companies should have foreseen the dangers and that they failed to provide adequate warnings.

Legal experts said her lawsuit, currently the only such case and one of only a handful ever filed, faces steep challenges but also raises interesting questions about responsibility for behavior that is a threat to everyone on the road.

Later in the story:
In 2003, a woman in Indiana sued Cingular after getting into an accident with another driver, who was reportedly using a Cingular phone. An Indiana appellate court, affirming a lower court’s decision, dismissed the suit, for reasons that include the unforeseeability of the accident and the absence of a legal relationship between the woman and Cingular. But the court also said that crashes are caused by driver inattention, not by cellphones, adding that drivers often talk on phones without crashing.
Here is the June 4, 2004 Court of Appeals opinion in the case of Terry L. Williams v. Cingular Wireless. Here are some quotes from the opinion:
The fact that states are beginning to limit the use of cellular phones while driving does not answer the question of whether it is foreseeable that the sale of a cellular phone will lead to a car accident. 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. See Webb, 575 N.E.2d at 997 (declining to impose liability on a physician for prescribing steroids to a patient on the grounds that it was not reasonably foreseeable that the medication would cause patient to harm others). 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. * * *

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.

479 Cellular phones are safely used in many different contexts every day. Indeed, many drivers use cellular phones safely for personal and business calls, as well as to report traffic emergencies. Encouraging drivers to report accidents, dangerous road conditions, or other similar threats to authorities on their cellular phones is in the public's interest.

Imposing a duty on Cingular and similar companies to prevent car accidents such as the one in this case 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. Doing so would place a higher burden on those companies than on other types of manufacturers or sellers of products that might be distracting to drivers. 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.

Transfer was denied Sept. 28, 2004.

This was before the heavy onset of texting while driving - see a list of ILB entries here.

More: See also this ILB entry from June 4, 2004.

Posted by Marcia Oddi on December 7, 2009 06:18 AM
Posted to Courts in general