Trial Magazine

The National Highway Traffic Safety Administration (NHTSA) reported 3,522 fatalities in distraction-affected crashes (a crash involving at least one distracted driver) in 2021.¹ This is a 12% increase from 2020.² And an additional 324,652 people were injured in motor vehicle distraction-affected crashes in 2020.³ The true numbers of fatalities and injuries are likely much higher, given the many reasons for underreporting.⁴ And although distracted driving affects all ages, it disproportionately affects young adults. NHTSA found that drivers 15 to 20 years old made up the largest proportion of drivers who were distracted at the time of fatal crashes in 2020.⁵

These statistics are unforgiveable. An overwhelming majority of drivers consider distracted driving unsafe,⁶ and for good reason: There is rarely any justification for driving while distracted. Yet, despite nearly universal agreement that distracted driving is unsafe, distraction-prone drivers make up an estimated 42% of the driving population.⁷ And as confirmed by studies and everyday experience, phone-related distractions account for most of distracted driving.⁸ Clearly, there is a disconnect between our beliefs and our behavior, as well as an urgent need to bridge this gap.

While mobile phones have been popular for over 30 years, there still is not a developed body of case law and litigation against manufacturers regarding dangerous driving due to mobile apps, calls, and texts. Instead, only a small number of reported opinions have decided claims against manufacturers for distracted driving, and the reasoning of these cases is weak, to say the least. Many of the decisions used reasoning that seemed outdated at the time and even more so now.

More development in this area is needed, but first you need to understand courts’ reasoning to date and how that reasoning could be applied in distracted driving cases for new digital products. The problem of distracted driving is too serious to leave the law so undeveloped.

Litigation Against Mobile Phone Manufacturers

A handful of significant opinions have addressed claims against mobile phone manufacturers alleging that the manufacturer’s negligence was a proximate cause of distraction-affected crashes, in conjunction with the distracted driver’s negligence. Two frequently cited cases help illustrate the limitations of the courts’ reasoning in these cases.

The first is a 2004 case, Williams v. Cingular Wireless.⁹ Terry Williams alleged that she was injured by Kellie Meagher’s negligence in using a cell phone while driving, and Williams asserted that Cingular was “negligent in furnishing a cellular phone to Meagher when it knew, or should have known, that” Meagher would use the phone while driving.¹⁰

In affirming the trial court’s dismissal of Williams’s claim against Cingular, the Indiana Court of Appeals held that “Cingular did not owe a duty of care to Williams.”¹¹ The court found that “imposing a duty on Cingular and similar companies . . . 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.”¹² The court also commented that it was “confident that the legislature is taking appropriate measures to protect public safety.”¹³

The court’s reasoning in Williams is concerning. To start, the court’s holding is that Cingular did not owe Williams any duty of care, but the reasoning behind the holding doesn’t seem to relate to duty. The court’s reasoning involves breach or causation, claiming Cingular acted reasonably (in other words, no breach) and that nothing Cingular could have done differently would have prevented Williams’s injury (in other words, no causation).

On those questions, the court also dismissed Williams’s claims at the pleading stage, before any discovery occurred. How did the court know that Cingular had no way—whether through a warning, a limitation on cell phone use at certain speeds, or other steps—to prevent Williams’s injury?

Similarly, the court’s conclusion that it was “confident” that the Indiana legislature would protect public safety was a dubious prediction at the time and irrelevant to whether courts should also enforce tort law to protect public safety. Of course, time has proven the court wrong. Sixteen years later, in 2020, the Indiana legislature was still discussing the need “to start a culture shift so that we can limit the number of accidents caused by distracted driving.”¹⁴

The other frequently cited case is Modisette v. Apple, Inc.¹⁵ Bethany and James Modisette alleged that they were seriously injured and their five-year-old daughter Moriah was killed after Garrett Wilhelm was driving on I-35 in Texas while using FaceTime and crashed his vehicle into the Modisettes’ vehicle. The Modisettes alleged that, from its patent applications, Apple knew of the dangers of using an iPhone while driving and of “the compulsive/addictive nature of smartphone use,” yet Apple neither warned about this foreseeable misuse nor implemented “‘lock-out’ technology it had already developed to prevent the use of its pre-installed ‘FaceTime’ application” while driving.¹⁶

In affirming the trial court’s dismissal of the Modisettes’ claims, the California Court of Appeals held that “Apple owed no duty of care to the Modisettes to design the [phone] with lockout technology”¹⁷ and “the gap between Apple’s design of the iPhone and the Modisettes’ injuries is too great”¹⁸ for Apple’s alleged negligence to be a proximate cause. The court found that “nothing that Apple did induced Wilhelm’s reckless driving,”¹⁹ and “studies involving smartphone addiction among young adults and young drivers . . . would not change our duty analysis.”²⁰

The court also found that, because California’s Rules of the Road did not prohibit a driver from using a wireless device while driving if the device can be activated or deactivated “with the motion of a single swipe or tap,”²¹ “the [l]egislature has rejected the Modisettes’ implicit argument that smartphones may never be used safely by drivers.”²²

The court’s reasoning in Modisette is even more concerning than that of Williams. As an initial matter, the court’s finding that nothing Apple did induced Wilhelm’s behavior defies common experience and the studies indicating that smartphones materially affect our behavior.²³

Indeed, the court seemed entirely dismissive of the Modisettes’ allegations that a smartphone’s effect on our minds is “similar to a slot machine,”²⁴ even though this is exactly how a former Google products manager described smartphones in a CBS “60 Minutes” program in 2017.²⁵ Rejecting these allegations at the pleading stage and without considering any evidence violates the standard of review and puts the court in the position of deciding facts without actually being informed about them.²⁶

Finally, the inferences the court drew from California’s Rules of the Road make no sense, given the facts alleged by the Modisettes. It is absurd to believe that the California legislature approved—to the degree that no jury could even consider a claim—of someone driving on the interstate while using a videoconference app.²⁷

Other cases besides Williams and Modisette similarly rely on dubious reasoning, including Meador v. Apple, Inc.,²⁸ Coalition Against Distracted Driving v. Apple, Inc.,²⁹ and Durkee v. C.H. Robinson Worldwide, Inc.³⁰ Unfortunately, these cases also treat Williams as though it was a foundational decision. But it was merely the first case decided.

Litigation Against Snap and Its ‘Speed Filter’

Courts’ problematic reasoning in cases like Williams and Modisette has the potential to result in negative long-term effects. For example, take the litigation against Snap and its “Speed Filter” product in Maynard v. Snapchat, Inc., a case filed in Georgia state court, and Lemmon v. Snap, Inc., a case filed in the Central District of California.³¹

In these cases, the plaintiffs alleged that Snap’s creation and maintenance of the Speed Filter—a filter displaying how fast a user was traveling—within its Snapchat mobile app had encouraged its users to drive at speeds of over 100 mph to capture a 100-mph Snap. The plaintiffs asserted a products liability claim based on negligent design against Snap, as the manufacturer of the Speed Filter. The plaintiffs faced two obstacles: the courts dismissing distracted-driving claims against mobile phone manufacturers and §230 of the Communications Decency Act. Keeping in mind the unfortunate lessons of the distracted-driving cases, the plaintiffs were able to overcome those obstacles at the pleading stage.

Section 230. As to the §230 issue, Snap argued that §230 immunizes internet companies from liability for merely publishing the speech of its users, and that Snap’s Speed Filter merely published the users’ speech about how fast they were going.

In response, the plaintiffs emphasized that Snap did more than merely publish speech. Snap affirmatively created its content through the Speed Filter and that the harm—encouraging its users to drive at dangerous speeds—flowed directly and entirely through Snap’s own content. The user’s content was simply the by-product or the after effect.

As the Georgia Court of Appeals held, “there was no third party content uploaded to Snapchat at the time of the [collision] and the Maynards do not seek to hold Snapchat liable for publishing a Snap by a third-party that utilized the Speed Filter.”³² “Rather, the Maynards seek to hold Snapchat liable for its own conduct, principally for the creation of the Speed Filter and its failure to warn users that the Speed Filter could encourage speeding and unsafe driving practices.”³³ The Ninth Circuit reached a similar conclusion in Lemmon: “the [p]arents’ claim does not depend on what messages, if any, a Snapchat user employing the Speed Filter actually sends.”³⁴

For much of this year, there was an expectation that the U.S. Supreme Court would weigh in on how §230 should be interpreted and that it may, in one direction or the other, reset the rules that formed the foundation of the Ninth Circuit’s opinion in Lemmon. However, the Supreme Court avoided deciding any §230 questions this year by finding in Twitter, Inc. v. Taamneh that the plaintiffs failed to state a claim under 18 U.S.C. §2333(d)(2), and then vacating and remanding to the Ninth Circuit in the §230 case Gonzales v. Google, LLC based on its opinion in Taamneh.³⁵ Thus, Lemmon remains the law of the land.

Duty and causation issues. As to the duty/causation issue raised by Snap, plaintiffs faced a difficult strategy question. While the distracted-driving cases were incorrectly decided, the plaintiffs did not need to ask courts to reject those cases. The courts could distinguish those cases, and that is precisely what the Central District of California did in Lemmon: “Modisette is distinguishable” because “this is not a distracted driving case.”³⁶ “The allegation here is that the design of the Speed Filter itself encouraged speeding—not that it was simply distracting the driver,” and “the ‘potentially sweeping implications’ of imposing a duty on manufacturers of distracting products is simply not applicable here.”³⁷

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While it would have been tempting to argue that distracted-driving cases were wrongly decided, the more effective route was to limit the authority based on its facts.

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One lesson from these cases is that while it would have been tempting to argue that distracted-driving cases were wrongly decided, the more effective route was limiting the authority based on its facts. Courts are generally more inclined to distinguish and limit prior cases than overrule them or outright disagree with them.

Another lesson is to lean into the technology—social media companies consider themselves to be a next-generation product, and because they are so different from ordinary “text messaging,” that helps you, as the plaintiff attorney, explain why their product is different from prior mobile phone cases.

Future Litigation for Mobile Products

Hopefully, future cases will not be subject to the troubling reasoning of the distracted-driving cases like Williams and Modisette. Among the types of cases that should be able to navigate this obstacle, much like plaintiffs did in the Speed Filter cases, are those against other types of apps such as Uber Eats. In those cases, plaintiffs allege Uber “incentivize[s] speed through the App and their compensation policies,” and “requires and encourages unsafe driving.”³⁸ Among other things, these plaintiffs allege that drivers have to drive fast to complete enough trips and earn tips under the company’s compensation policy—basically, the app incentivizes speed.³⁹

The drivers are incentivized to accept orders even under unsafe conditions—such as when they are fatigued.⁴⁰ The plaintiffs also allege the app prompts drivers to communicate with customers, which generally means messaging while driving.⁴¹

These cases seem to offer a narrower path than the distracted-driving cases because they are more targeted—focusing on a specific app, rather than all cell phones, and focusing on financial incentives for dangerous driving, rather than general behavior.

The Uber cases, though, are just one example. Unfortunately, there are sure to be more mobile apps that contribute to dangerous driving, and the law needs to continue to develop in this area to prevent future death and injury.⁴²

As we litigate the emerging field of mobile apps and distracted driving, we must prioritize thinking about how to nudge the law in a forward-moving direction. Just as trial lawyers had to fight hard battles to develop modern automobile regulation and law, we must do the same for mobile apps and distracted driving.

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AAJ RESOURCES

• Technology & Science Section
• CDA Section 230 Litigation Group
• Distracted Driving Litigation Group

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Naveen Ramachandrappa is a partner at Bondurant Mixson & Elmore in Atlanta and can be reached at ramachandrappa@bmelaw.com.

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Notes

1. Nat’l Highway Traffic Safety Admin., DOT HS 813 435, Overview of Motor Vehicle Traffic Crashes in 2021, at 23 (2023), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813435.
2. Id.
3. Nat’l Highway Traffic Safety Admin., DOT HS 813 309, Distracted Driving 2020 (2022), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813309. It does not appear that NHTSA has reported non-fatality injury numbers for 2021 involving distracted drivers.
4. Id. at 5.
5. Id. at 1.
6. Aimee Cox & Ins. Inst. for Highway Safety, A Brief Review of Distracted Driving Research, at 3 (2021), https://www.enddd.org/wp-content/uploads/2021/11/NDDC-literature-review.pdf.
7. Id. at 1.
8. Id. at 2.
9. 809 N.E.2d 473 (Ind. Ct. App. 2004).
10. Id. at 475.
11. Id. at 479.
12. Id.
13. Id. at 478–79.
14. Kellie Hwang, A Ban on Holding Phones While Driving Seems Set to Become Law. Here’s What That Means, IndyStar, Jan. 17, 2020, https://tinyurl.com/5r3zazf7.
15. 241 Cal. Rptr. 3d 209 (Cal. Ct. App. 2018).
16. Id. at 213–14.
17. Id. at 223.
18. Id. at 226.
19. Id. at 219.
20. Id. at 219 n.9.
21. Id. (citing Cal. Vehicle Code §23123.5(c)(1)-(2) (also requiring that the device be mounted “in a manner that does not hinder the driver’s view of the road”)).
22. Modisette, 241 Cal. Rptr. 3d at 223.
23. See, e.g., Office of the Surgeon Gen., Social Media and Youth Mental Health: The U.S. Surgeon General’s Advisory, June 5, 2023, https://www.hhs.gov/sites/default/files/sg-youth-mental-health-social-media-advisory.pdf; Luca Braghiere et al., Social Media and Mental Health, SSRN (2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3919760.
24. Modisette, 241 Cal. Rptr. 3d at 222 n.12.
25. CBS Mornings, Silicon Valley Insider on Why Smartphones Are “Slot Machines”, YouTube (Apr. 10, 2017), https://www.youtube.com/watch?v=gvQxtotEX-M.
26. See, e.g., Modisette, 241 Cal. Rptr. 3d at 215 (“Accordingly, we assume that the complaint’s properly pleaded material allegations are true.”).
27. Indeed, California’s Office of Traffic Safety has a simple campaign—“Put Your Phone Down. Just Drive.” Ca. Office of Traffic Safety, Distracted Driving, https://www.ots.ca.gov/media-and-research/campaigns/distracted-driving-april/.
28. 911 F.3d 260, 265 (5th Cir. 2018).
29. 2018 WL 2016665, at *1 (Cal. Ct. App. May 1, 2018).
30. 765 F. Supp. 2d 742, 758 (W.D.N.C. 2011).
31. The author represented the plaintiffs in these cases as lead appellate counsel, along with lead trial counsel Michael L. Neff and D. Dwayne Adams of Neff Injury Law.
32. Maynard v. Snapchat, Inc., 816 S.E.2d 77, 81 (Ga. Ct. App. 2018).
33. Id.
34. Lemmon v. Snap, Inc., 995 F.3d 1085, 1094 (9th Cir. 2021).
35. Maureen Leddy, Courts, Congress Explore Tech Company Accountability for Social Media Harms, Trial News, Mar. 23, 2023; Maureen Leddy, SCOTUS Declines to Rule on §230 Immunity, Trial News, May 19, 2023.
36. Lemmon v. Snap, Inc., 2022 WL 1407936, at *10 (C.D. Cal. Mar. 31, 2022).
37. Id.
38. Complaint ¶¶ 59–60, Lambert v. Uber Techs., Inc., 01-2021-CA-0499 (Fla. Cir. Ct. Feb. 23, 2021), https://www.wuft.org/news/files/2021/03/Lambert-Lawsuit.pdf. See also Cindy Swirko, Drivers, Uber Sued in University Crashes, Gainesville Sun, Mar. 2, 2021, https://tinyurl.com/bdfw426v; Complaint ¶¶ 30–41, Liu v. Uber Techs., Inc., CGC-14-536979 (Cal. Super. Ct. Jan. 27, 2014), 2014 WL 285058.
39. Complaint ¶ 60, Lambert, 01-2021-CA-0499.
40. Complaint ¶ 53, Lambert, 01-2021-CA-0499.
41. Complaint ¶ 59, Lambert, 01-2021-CA-0499; Complaint ¶¶ 35–41, Liu, CGC-14-536979. See also Brad Aaron, Crash Victim Lawsuit: App Use by Uber Drivers Is Negligent and Illegal, Streetsblog, Mar. 20, 2015, https://nyc.streetsblog.org/2015/03/20/crash-victim-lawsuit-app-use-by-uber-drivers-is-negligent-and-illegal; WYXZ Detroit 7ABC News, Detroit Woman Suing Uber, Lyft Following Distracted Driving Crash, Dec. 20, 2018, https://www.wxyz.com/news/detroit-woman-suing-uber-lyft-after-becoming-permanently-disabled-following-crash.
42. Neal E. Boudette, A New Tesla Safety Concern: Drivers Can Play Video Games in Moving Cars, N.Y. Times, Dec. 7, 2021, www.nytimes.com/2021/12/07/business/tesla-video-game-driving.html.