Dallas, Texas (February 26, 2019) - Litigation arising out of automobile crashes resulting from the use of smartphones and similar modern technology is on the rise. Recently, the Fifth Circuit Court of Appeals – which presides over Texas, Louisiana and Mississippi – ruled in a case of first impression that Apple was not liable for a driver’s neurobiological response to a smartphone notification which caused him to check his phone and cause an accident as the result of the distraction. See Meador v. Apple, Inc., 911 F.3d 260 (5th Cir. 2018).
Motorists that use their mobile devices while driving are considered distracted drivers, and cause approximately 10% of fatal vehicle crashes in the United States. Emily K. Strider, Don't Text A Driver: Civil Liability of Remote Third-Party Texters After Kubert v. Best, 56 Wm. & Mary L. Review 1003 (2014). While states have begun banning texting and driving, plaintiffs around the country have been looking to expand the liability for smartphone-related distracted driving to third parties such as phone manufacturers, ride-sharing software companies, and the persons sending text messages to drivers.
Third-party liability frequently emerges as an issue in the context of distracted driving. Late in 2018, the Fifth Circuit was the first court to rule regarding a phone manufacturer’s liability for a car accident caused by a driver who was distracted by a notification on his phone. See Meador v. Apple, Inc., 911 F.3d 260 (5th Cir. 2018). The court noted that “no court in the country has yet held that [a manufacturer of a cell phone could be held liable for the actions of a driver distracted by a cell phone], and numerous courts have declined to do so” and ruled that the governing Texas law placed the responsibility on the driver, and not a remote party such as a cell phone provider or the vehicle manufacturer. See id. Meanwhile, courts across the nation have been expanding third-party liability in other contexts.
For example, New Jersey Courts have openly adopted a third-party liability approach, imposing responsibility upon even the sender of a text if an accident is caused by the text, and if the sender knew or had special reason to know that the recipient would view the text while driving. See Kubert v. Best, 75 A.3d 1214, 1227-28 (N.J. Super. Ct. App. Div. 2013). Neighboring states such as Pennsylvania have not yet affirmatively adopted this strict approach on distracted driving; however, at least one court made it clear that it may find third-party liability in appropriate circumstances. See Gallatin v. Gargiulo, et al., No. 10401 of 2015 (Pa. Com. Pl. Mar. 9, 2015) (Lawrence Cty.) (Hodge, J.) (court refused to dismiss claims against a defendant who was texting the driver who allegedly caused the car accident allowing plaintiff to conduct discovery to determine if the sender violated a duty to plaintiff). The court in Gallatin noted that for liability to attach, an individual must know or have reason to know at the time of the accident that the person they texted was driving and would view the text. Id. at 9.
Third-party liability theories in distracted driving litigation continue to evolve. Recently, a Detroit woman who was a passenger in a high speed collision while riding in a Lyft is suing both Lyft and Uber ride sharing services, alleging that her driver was distracted by pick-up notifications, causing him to crash. See JC Reindl, Detroit Free Press, (December 28, 2018). The lawsuit claims that the driver was traveling about 70 miles per hour when he crashed into a tractor-trailer stopped on the highway. This is the first time Uber and Lyft have been sued in a distracted-driving case. Id.
Proximate Cause of the Accident
In most of these cases where plaintiffs have attempted to impose liability on third parties other than the distracted driver, the issue of liability has often turned on whether the third party – a cellphone carrier, a manufacturer or even a social media platform – was the proximate cause of the accident. See e.g., Meador, 911 F.3d at 264 (“under Texas law, negligence requires a showing of proximate cause.”).
The proximate cause is generally a two-step inquiry: (1) cause in fact and; (2) foreseeability. Id. at 264 (citing Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007)). Cause in fact means that the defendant’s acts or omissions were a substantial factor in bringing about the injury which would not otherwise have occurred. See id. at 264. “Substantial” means “the defendant’s conduct ha[d] such an effect in producing the harm as to lead reasonable men to regard it as a cause.” See id. at 265. In Meador, the court refused to find that an iPhone’s notification system’s effect on the driver was the substantial factor in the driver’s tortious acts, thus finding no proximate cause between Apple’s manufacturing of a phone with a notification system and the car accident. Id.
In Durekee v. Geologic Solutions, Inc., the Fourth Circuit Court of Appeals addressed the first prong of the proximate cause analysis – causation. 502 Fed. Appx. 326, 327 (4th Cir. 2013). In that case, a motorist drove a tractor-trailer into a vehicle, causing fatal injuries. Id. The plaintiffs claimed that the driver became distracted by the presence of a texting system located in the truck which was manufactured by a subsidiary of Xata and alleged that Xata owed them a legal duty of care because injuries to the traveling public as a result of the texting apparatus were reasonably foreseeable. Id. at 327. The court did not address the foreseeability argument, but ruled that the cause of the accident was not the device itself, but rather, the defendant’s inattention. Id. at 328. The court further held that manufacturers are not required to design a product incapable of distracting drivers, and that Xata owed no duties to plaintiffs. Id.
In Williams v. Cingular Wireless, the Court of Appeals of Indiana, First District, addressed both causation and foreseeability explaining that:
“[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.” 809 N.E.2d 473 (Ind. Ct. App. 2004).
Thus, the two-step analysis courts utilize to determine proximate cause has provided a shield for third-party defendants in litigation arising out of distracted driving.
Despite numerous texting-and-driving bans around the country, drivers continue to engage in this behavior. As litigation involving distracted driver theories continues to rise, plaintiffs will continue to look for ways to hold third parties liable for injuries caused by distracted drivers. While the Fifth Circuit Court of Appeals was the first court to consider whether a phone manufacturer can be liable for a driver’s neurobiological response to a smartphone notification, it certainly will not be the last court to consider that argument or similar ones.
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