Key Takeaways
The law regarding whether apps are products subject to product liability statutes remains unsettled, but the determination of their status will have a significant impact on the scope of future claims against developers.
Earlier this summer, in the Northern District of Ohio, Judge Philip Calabrese issued an order certifying the following question to the Ohio Supreme Court: "Does the Ohio Product Liability Act abrogate common-law claims alleging personal injuries from the use of a digital app, which is not a 'product' within the meaning of the Act?"Certification of a Question of Law,Deditch v. Uber Techs., Inc., No. 1:24-cv-01488 (N.D. Ohio July 14, 2025), ECF No. 18 at 7.
In the underlying case, the plaintiff, Edward Deditch alleges that another driver was switching between mobile applications for Uber and Lyft in order to pick up passengers, and while doing so, rear-ended him.Id.at 2. Central to Plaintiff's claims is an allegation that Uber and Lyft owed a duty to ensure that their apps did not cause distracted driving on public roads.Id.Lyft moved to dismiss Plaintiff's claim for "negligence with malice" arguing that the Ohio Product Liability Act ("OPLA") abrogates Plaintiff's claim.Id.at 2-3.
Under the OPLA, a "product" is "any object, substance, mixture, or raw material that constitutes tangible personal property" that is "capable of delivery itself" and "intended for sale or lease to persons for commercial or personal use."Id.at 3. Judge Calabrese and Lyft agree that under this definition, the Lyft app is not a "product."Id.at 3-4. While the legislative history and caselaw suggest that the OPLA may sweep more broadly, no Ohio court has yet decided whether the OPLA "abrogates common-law claims involving a digital or intangible res (such as software, computer code, or a website) that otherwise sound in a theory of product liability."Id.at 4-6. Further, the OPLA provision which preserves claims not subject to the OPLA "direct[s] that any recovery of compensatory and punitive damages, 'based on a product liability claim' for the former and 'in connection with a product liability claim' for the latter, must be through the [OPLA]," leaving plaintiffs no common-law claim outside the OPLA for a case alleging personal injury in connection with a product.Id.at 6-7 (quoting Ohio Rev. Code § 2307.72(A-B)).
Should the Ohio Supreme Court find that the OPLA does not abrogate claims alleging personal injuries from the use of a digital app, this would open the door to broader boundary disputes over what constitutes a "product" under Ohio law. Ultimately, the Ohio Supreme Court may view this as a choice between bringing apps within the familiar ambit of the OPLA or risking the development of a parallel common-law scheme outside of the OPLA.
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