Status of Distracted Driving Litigation Across the United States

If the headlines and statistics are believed, there is a distracted driving crisis in the United States. And though the act of driving while distracted has existed since we began driving, today the concern is overwhelmingly focused on a driver’s distracting interactions with his or her smartphone. Nearly every state in the country has some level of restriction on the use of smartphones while driving. Various organizations and companies have spent millions of dollars on public awareness campaigns, and more and more laws with stiffer penalties aimed at curbing the problem are enacted each year. Despite all these actions, the problem persists and by some accounts is getting worse.

Perhaps not surprisingly, there have been a number of attempts by the plaintiffs’ bar to look for a distracted driving remedy in the courts. A growing handful of lawsuits have been filed against cell phone manufactures. All these suits contend that responsibility for injuries caused by distracted driving should be borne by more than just the driver. To date, whether based in negligence, strict liability, failure to warn, or combination of all the above, all of these attempts have been similarly dismissed at a very early stage.

One of the earliest attempts to shift some responsibility away from the actual distracted driver was brought against a wireless provider. In Williams v. Cingular Wireless, 809 N.E.2d 473 (Ind. Ct. App. 2004), plaintiff alleged a driver interacting with their phone became distracted, and failed to obey applicable traffic signs. In a claim based primarily on negligence plaintiff argued that the defendant Cingular Wireless was negligent in furnishing the cellular phone, and knew or should have known that it would be used while operating a motor vehicle. The Court disagreed, and dismissed the case on the pleadings. The Court held that Cingular owed no duty to the plaintiff because, in part, “the cellular phone itself did not malfunction and cause Williams’ [plaintiff’s] injury.” Id. at 477. Rejecting the obfuscation inherent in plaintiff’s argument, the Court noted: “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.” Id. at 478.

The Court also addressed the “foreseeability” argument that appears in many of these cases, i.e., it is foreseeable that drivers use their smartphones while driving and inevitably become distracted, resulting in accidents and injury.   In so doing the Court astutely distinguished between foreseeability in general and legally actionable foreseeability. As explained by the Court:

Simply because an action may have some degree of foreseeability does not make it sound public policy to impose 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 [sic], 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.
Id. at 478.

In one of the first cases brought against a cell phone or smartphone manufacturer, The Estate of Doyle v. Sprint/Nextel Corporation and Samsung Telecommunications America LLC, 248 P.3d 947 (Okla. Civ. App. 2010), plaintiff alleged that the defendants “…were negligent in that they failed to properly warn of the hazard of cell phone use while driving.” Id. at 949. The Court employed common sense, as much as any particular legal theory, finding that “…use of a cellular phone or cellular service are not inherently dangerous acts…” Id. at 951. The Court continued, “…even if using a cell phone while driving is foreseeable, it is not necessarily foreseeable that it will cause a collision or unreasonably endanger a particular class of persons.” Id.

A year later in Durkee v. C. H. Robinson Worldwide Inc., et al., 765 F.Supp.2d 742 (W.D.N.C. Jan. 28, 2011), plaintiff alleged that the texting system built into the cab of a tractor- trailer rig was unreasonably designed and manufactured. In addition, the plaintiff argued that an alternative texting system could have been utilized; one that limited the functionality while the tractor-trailer was in motion. The court noted, however, that there was no allegation that the device at issue, a texting interface, actually malfunctioned in any way. “[T]the only allegations are that the end user used the device when he should have been watching the road, and Geologic and Xata [Defendants] should have anticipated such misuse and designed it in a manner which prevented it being used while the truck was moving…” Id. at 749. With language that echoes recent cases brought against smartphone manufacturers, the Court concluded such a theory of liability “…would impose a duty on manufacturers to anticipate misuse of a product and design such a product to prevent misuse. If such a legal duty to anticipate misuse were to be imposed on manufacturers, no vehicle would be capable of traveling above the speed limit, car ignitions would all be equipped with ignition interlock devices, and guns would not be sold to person with poor judgment.” Id.

Another imbedded vehicular system was at issue in Ford [an individual] v. The Hertz Corporation, et al., 2012 WL 1238489 (Cal.App.4th Dist. Apr. 13, 2012). In this case the plaintiff claimed that the defendant, a driver who had rented a vehicle from co-defendant Hertz, became distracted while utilizing the built in Hertz navigation system. Plaintiff further argued that Hertz should have provided an alternative design that automatically disabled itself upon motion of the vehicle. Once again, rejecting the claim at an early pre-discovery stage, the Court concluded that the complaint failed to state sufficient facts to show how a “…defective navigation system could cause a rear-end collision.” Id. at *2. The Court found that the fact that the distracted driver may have been distracted by the navigation system was not enough. “There are myriad distractions to any driver and it is the driver’s duty to maintain control of the car despite distractions.” Id. This theme, that “the navigation system could not cause a rear-end collision” has also run through the more recent decisions against smartphone manufacturers.

More recently, there have been a series of filings against cell phone manufacturers arguing that without incorporation of functionality that disables texting and other communication features of the device when it reaches highway speeds a smartphone is an unreasonably dangerous product. The first of these cases was filed in the Eastern District of Texas in 2015. Meador v. Apple, Inc., Civ. A. No. 6:15-CV-715, 2016 WL 7665863 (E.D. Tex., Aug. 16, 2016) involved another tragic case of serious injury and death resulting from an automobile accident. The defendant driver was distracted when she allegedly looked down at her phone to check a text, or other message, and subsequently rear-ended the car in front of her. The complaint sounded in strict liability and failure to warn, among other theories, but at its core was an argument that a safer alternative design – one that would disable certain functionality once the phone detected it was traveling at highway speeds – existed and should have been implemented by Apple. In response to the complaint, Apple filed a motion to dismiss for failure to state a plausible claim for product liability under FRCP 129b)(6).

Though raising various defects in the plaintiffs’ pleadings and argument inherent therein, the Court focused primarily on causation. In its Report and Recommendation of Dismissal, the Magistrate Judge found that even assuming all of plaintiffs’ allegations as true, “…the forces generated by the iPhone’s alleged defect and by Apple’s conduct in designing and marketing the iPhone came to rest after the incoming message was delivered to Kubiak’s [the driver’s] iPhone.” Id. at 4. As reasoned by the Magistrate Judge, “…a real risk of injury did not materialize until [the driver] neglected her duty to safely operate her vehicle by diverting her attention away from the roadway. In that sense, Apple’s [alleged] failure to configure the iPhone to automatically disable did nothing more than create the condition that made Plaintiffs’ injuries possible.” Id. Accordingly, the Judge concluded that Apple’s alleged conduct did nothing more than “…create the condition that made Plaintiffs’ injuries possible,” but lacked a close enough connection with Plaintiffs’ injuries to constitute their legal cause. Id.

In an interesting twist, the same lawyer team in the Meador v. Apple, Inc. case took another stab at the same cause of action in the matter of Modisette, et al. v. Apple, Inc. filed in December 2016. Case No. 16-CV-304364 (Sup.Ct. of Santa Clara County CA, Dec. 23, 2016). The automobile accident at the center of Plaintiffs’ complaint occurred in Denton, Texas on Christmas Eve 2014. All the drivers involved in the automobile accident and the plaintiff victims were Texas residents. Despite this, and in an attempt to avoid the precedent set by the Magistrate Judge in the Meador action, Plaintiffs filed suit in Santa Clara County California State Court. In addition, this filing took advantage of the “local defendant exception” to diversity jurisdiction and precluded Apple’s removal to Federal Court. However, the victory therein was short lived. In response to the petition Apple filed a Demurrer[1], and argued that each and every allegation was insufficient to state a cause of action. In a lengthy, detailed and well thought out opinion, the Court, again at the pleading stage, quickly dispensed of all Plaintiffs’ claims and granted Apple’s Demurrer in its entirety. As put forth by the court, “there is not a sufficiently ‘close’ connection between Apple’s conduct and Plaintiffs’ injuries to warrant the imposition of a legal duty.” Order Sustaining Defendant Apple Inc.’s Demurrers to Plaintiffs’ First Amended Complaint at 7, id. Citing a case which Apple raised in the Meador v. Apple, Inc. case in Texas, the Court found persuasive the argument in Lompoc Unified School Dist. V. Superior Court (1993) 20 Cal.App.4th 1688, 1694 that “…no legal duty [existed] to provide a distraction barrier to prevent passing motorists from seeing or hearing what is occurring upon the land.” Id. As stated by the Lompoc Court and quoted with approval by the Court in Modisette, “the defendant in such a case ‘has no liability for injuries caused by the motorist who is not paying attention to where he or she is going’ because ‘it is the motorist who has the duty to exercise reasonable care at all times, to be alert to potential dangers, and to not permit his or her attention to be so distracted by an interesting sight that such would interfere with the safe operation of a motor vehicle.’” Id.

Extending this rationale to the claims against Apple, the Court found “…no reason why a legal duty should be imposed on Apple to erect a ‘distraction barrier’ simply because the alleged distraction occurs inside the motor vehicle as opposed to outside of it.” Order Sustaining Defendant Apple Inc.’s Demurrers to Plaintiffs’ First Amended Complaint at 7, Modisette v. Apple, Case No. 16-CV-304364 (Sup.Ct. of Santa Clara County CA). Continuing its analysis, and focusing on policy considerations and implications, the Court noted, “Apple cannot control what people do with the phones after they purchase them. [citation omitted]. To place a duty on Apple to develop and install additional software, or issue warnings to users, because the phone might be involved in a car accident would be akin to making a car manufacturer install software that caps a vehicle’s speed, or warn car buyers against driving above the speed limit, because the car might be negligently used in such a way that it causes an accident. [citation omitted].” Order Sustaining Defendant Apple Inc.’s Demurrers to Plaintiffs’ First Amended Complaint at 8, id.

In addressing the lack of legally sufficient causation, the Court relied on the Magistrate’s ruling in the Meador case noting that while “it is not binding authority here, the Court finds persuasive the reasoning and finding of the United States District Court in Meador v. Apple, Inc. There, the District Court rejected at the pleading stage similar theories of liability alleged against Apple, finding ‘because the circumstances here are not ‘such that reasonable jurors would identify [iPhone or Apple’s conduct] as being actually responsible for the ultimate harm’ to Plaintiffs, the iPhone and Apple’s conduct are too remotely connected with Plaintiffs’ injuries to constitute their legal cause.’” Order Sustaining Defendant Apple Inc.’s Demurrers to Plaintiffs’ First Amended Complaint at 10, id. citing Meador at *4. The Modisette Court agreed that the chain of causation alleged by Plaintiff was “far too attenuated for a reasonable person to conclude that Apple’s conduct is or was a substantial factor in causing Plaintiffs’ harm. [citation omitted].” Order Sustaining Defendant Apple Inc.’s Demurrers to Plaintiffs’ First Amended Complaint at 10, id.

Most recently, on August 17, 2017, United States District Judge for the Eastern District of Texas Robert W. Schroeder III affirmed Magistrate Judge Mitchell’s Report and Recommendation in the Meador v. Apple (discussed above) case and dismissed Plaintiffs’ claims with prejudice. 6:15-cv-715 (Dkt. 80). The Court further denied Plaintiffs’ request to file an amended complaint, finding that the changes proposed were “frivolous” and advanced a claim that was “legally insufficient on its face.” Id. at 10.   In a thorough opinion, the Court reaffirmed that the responsibility for distracted driving lies with the driver. At most, the iPhone “did nothing more than create the condition that made Plaintiffs’ injuries possible.” Id. at 4. That does not constitute “legal cause” or “cause in fact,” which is required under Texas law. Even if engaged in allegedly compulsive or addictive behaviors, such as eating, drinking alcohol, or smoking it is the “driver’s negligence in engaging in those activities that causes any resulting injuries, not the cook’s, distiller’s or tobacconist’s supposed negligence in making their products so enticing.” Id. at 3. Stated differently, and assuming as true Plaintiffs’ allegations that the iPhone is “compulsive and addictive” the Court held that the driver’s choice to “indulge in such behavior while driving does not redound to Apple.” Id. at 8. (emphasis in original) Despite these successes, these decisions will likely not be the last word. Though every attempt to date has failed, plaintiffs’ lawyer can be expected to continue to file more cases, and try new theories in an attempt to shift some of the fault for distracted driving away from the driver.   Stay tuned.

Findlay Craft has been actively involved in these cases, serving as lead and co-lead counsel in several of them. If you have any questions, or would like additional information please contact us.

[1] The State Court equivalent of a Motion to Dismiss under F.R.C.P 12(b)(6).