The landscape of distracted driving
February 2017 - Joel D. Feldman
Distracted driving is an increasing and deadly problem that presents questions lawyers and courts will need to grapple with.
In 2009, Webster’s New World College Dictionary’s “word of the year” was “distracted driving.” The dictionary’s editors noted that “distracted driving is another reflection—and consequence—of our ongoing romance with all things digital and mobile and the enhanced capabilities they provide.”1
As pedestrians, drivers, and passengers, we routinely see motorists using hand-held electronic devices while driving. Statistics from the National Highway Traffic Safety Administration (NHTSA) show that traffic fatalities are rising, reversing what had been a general decline in fatalities since 2006.2
Of those crashes attributable to “human choices,” fatalities from distracted driving increased from 2014 to 2015 at a faster rate than any other category.3 Unfortunately, NHTSA’s estimate of traffic fatalities for 2016 indicates that this upward trend in overall fatalities likely will continue.4
Plaintiffs have had success bringing cases against distracted drivers and their employers, but holding cell phone service providers and manufacturers liable has been difficult.5 Because of the growing carnage on our roadways and the increased attention on distracted driving, courts might be willing to look at these cases differently. Recent decisions, new case filings attempting to expand liability, and likely future cases all reveal the landscape of distracted driving cases.
Drivers who take their eyes off the road to interact with cell phones or other devices are “visually distracted.”6 Cases are routinely filed against drivers—and their employers—when they look away from the road to interact with a device in the course and scope of their employment and cause a crash.
Liability against the driver is based on common law negligence and violation of statutes prohibiting use of electronic devices while driving. Liability against the employer is based on respondeat superior, as well as improper training and inadequate—or nonexistent—cell phone policies.7
Sometimes the employer’s responsibility is straightforward; other times, it may not be so obvious. For example, what if an employee causes a crash while using an employer-provided cell phone but not while conducting business? One district court has held that the employer is not liable because the call was not in furtherance of the employer’s business.8
In some cases, an employer’s cell phone policy—or lack thereof—is a critical liability issue. Does the company have one? Is it enforced? If not, should one exist? And should that policy mirror state law or be more restrictive? With growing awareness of the extreme risks of cell phone use while driving, along with the passage of more state laws banning texting or hand-held cell phone use, courts may be more likely to permit punitive damages claims against employers.9
Cases also are being filed against people who facilitate the driver’s texting or app use. In 2013, a New Jersey court held that under limited circumstances, a valid cause of action exists against a person not present in the driver’s vehicle but who texted the driver, resulting in a crash.10
The court reasoned that the “remote texter” owed a duty to those injured if he or she knew, when sending the text, that the recipient was driving and would continue to drive and read the text, thereby distracting the driver.11 In that case, telephone records indicated that the driver was exchanging text messages with his girlfriend while driving.
Device and app designers are other potentially liable parties in distracted driving cases. For example, in 2014, Uber was sued when one of its drivers killed a six-year-old pedestrian. The plaintiffs claimed that Uber contributed to its drivers’ distraction by requiring them to manually input data in its app to accept fares while driving.12
In 2015, Snapchat and an allegedly distracted driver were sued under the theory that Snapchat encouraged drivers to travel at excessive speeds to take selfies using the app’s “speed filter,” which imprints the vehicle’s speed on a photo or video—in this case, allegedly more than 100 mph.13
Apple was also sued in 2015 after a driver texting on an iPhone caused a crash that resulted in two deaths and a child’s paralysis. The plaintiff alleged that Apple should have incorporated a “lock-out” mechanism—for which it had filed a patent—to prevent texting while driving.14 The patent was cited in the complaint as proof that Apple knew of the dangers that texting drivers pose and as an alternative design that would have prevented the crash.15
To date, courts dismissing cases filed against parties other than the distracted driver have focused on the lack of foreseeability of drivers using cell phones and causing crashes.16 But with the proliferation of these devices and increased danger on the road, courts may look at foreseeability and causation issues differently going forward.
Driving is cognitively demanding, so looking away from the road to manually interact with a device is obviously risky. But what about using voice-activated, hands-free devices?
While these devices are advertised as risk-free, studies have demonstrated otherwise.17 Research has consistently shown that going from hand-held to hands-free provides no significant safety benefit because doing so does not eliminate the cognitive demand placed on drivers.18 Many people claim to be good multitaskers, but it is rare that someone can do two cognitively demanding tasks perfectly at the same time.19 Most people switch attention back and forth from one task to the other, and performance on each task suffers.
Many new vehicles are equipped with voice-activated systems that allow drivers to select music, adjust climate controls, use GPS and navigation systems, make and receive phone calls, send and receive text messages, and interact with social media—all while driving.
A study of in-vehicle infotainment systems (IVIS) in 10 different car models from 2015 found that using IVIS while driving resulted in moderate to high levels of cognitive workload for drivers.20 The study found that some manufacturers’ systems resulted in less cognitive workload for drivers because they were less complex and tasks took less time to complete. Would these differences be evidence of safer alternative designs to support claims against manufacturers whose systems resulted in higher cognitive workloads than others?
Lawyers handling distracted driving cases should be aware of NHTSA’s recommendations and guidelines for reducing distracted driving. The agency’s “Blueprint for Ending Distracted Driving” was released in 2012 and summarized the steps the agency would take to reduce distracted driving, including issuing nonbinding, voluntary guidelines for the development of in-vehicle and portable devices.21
NHTSA released these guidelines in November.22 However, they have taken so long to develop that portable device use by drivers has become ubiquitous and caused many crashes. Unfortunately, NHTSA recommends that hand-held devices be “paired” with vehicles so they can be used hands-free. But given the research establishing that hands-free use of devices is not risk-free, use of these devices should be restricted—not encouraged.
Would it be unreasonable to limit device functionality only to those actions that assist the driver’s safe operation of the vehicle? NHTSA’s guidelines discuss developing technology that would distinguish between a driver and a passenger using a device, with the potential to lock out some inherently dangerous driver uses.23
Some manufacturers allow factory-installed navigation devices to be used while the vehicle is moving; others, such as Lexus, disable them. Does this design dichotomy suggest an alternative safer design for products liability causes of action? Should auto manufacturers have a responsibility not to encourage multitasking while driving?
We likely will see more cases brought against remote texters, cell phone manufacturers, and service providers. With the epidemic of distracted driving crashes, hopefully more courts will allow juries to hear these cases. Although science does not support the safety of voice-activated devices, perhaps they can be made less dangerous.
However, first-generation devices are already in vehicles and on the road, and marketing campaigns proclaiming these devices to be risk-free have provided a false sense of security.24 By representing families tragically impacted by preventable crashes, trial lawyers play a major role in raising awareness about the dangers of devices that visually and cognitively distract drivers.
Joel D. Feldman is an attorney at Anapol Weiss in Philadelphia. He can be reached at email@example.com.
- Wiley Publishing, Inc., Distracted Driving is the Webster’s New World 2009 Word of the Year (Nov. 2, 2009), PR Newswire, tinyurl.com/jpg4pqk.
- U.S. Dep’t of Transp., NHTSA Traffic Safety Facts Research Note: 2015 Motor Vehicle Crashes: Overview (Aug. 2016), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812318.
- Id. at 6 fig. 9.
- Nat’l Highway Traffic Safety Admin., Early Estimate of Motor Vehicle Traffic Fatalities for the First Half (Jan–Jun) of 2016 (Oct. 2016), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812332.
- Williams v. Cingular Wireless, 809 N.E. 2d 473 (Ind. Ct. App. 2004) (dismissing case against the manufacturer of the cell phone that the defendant driver was using at the time of the crash); Doyle v. Sprint/Nextel Corp., 248 P.3d 947 (Okla. Civ. App. 2010) (dismissing case against cell phone service provider for defendant driver who, while using the cell phone, ran a red light and caused the crash); Durkee v. C.H. Robinson Worldwide Inc., 765 F. Supp. 2d 742 (W.D.N.C. 2011), aff’d sub nom Durkee v. Geologic Solutions, Inc., 502 F. App’x 326 (4th Cir. 2013) (dismissing case against manufacturer of texting system installed in tractor-trailer that defendant driver was using at the time of the crash). In each of these cases, the courts were unwilling to impose a duty on the cell phone supplier, texting system supplier, or service provider just because it may have been foreseeable that drivers may choose to interact with devices and become distracted.
- Driving distractions are classified as manual, visual, cognitive, or a combination of each. Ctrs. for Disease Control & Prevention, Distracted Driving, www.cdc.gov/motorvehiclesafety/distracted_driving.
- McClane v. Rich Transport, Inc., 2012 WL 3257658 (E.D. Ark. Aug. 9, 2012) (The defendant driver’s employer could be liable for an independent claim of negligence and for punitive damages for failing to educate and supervise its drivers regarding the dangers of texting while driving. For a sample business cell phone policy, see www.EndDD.org/end-distracted-driving.
- See Hoskins v. King, 676 F. Supp. 2d 441 (D.S.C. 2009) (holding that despite the driver talking on an employer-provided cell phone at the time of the crash, the employer was not liable as the call was not in furtherance of the employer’s business); see also Henderson v. Adia Servs., Inc., 182 Cal. App. 3d 1069 (Calif. Ct. App. 1986).
- In Scott v. Burke, 2013 WL 4648402 (W.D. Pa. Aug. 29, 2013), the court held that a claim may proceed for punitive damages against a tractor-trailer driver and his employer when there was evidence of cell phone use just prior to the collision and the employer was aware of the driver’s history of inattentiveness at the wheel.
- Kubert v. Best, 75 A.3d 1214 (N.J. Super. Ct. App. Div. 2013).
- Id. at 1229.
- Liu v. Uber Tech., Inc., No. CGC-14-536979 (Calif. Super. Ct. San Francisco Cnty. filed Jan. 27, 2014). A confidential settlement was reached in 2015. Because of the case, Uber changed its policies to provide insurance coverage for crashes its drivers caused while logged into the app, even when no passenger was in the vehicle.
- Maynard v. McGee & Snapchat, Inc., No. 16-SV-89 (Ga. Spalding Cnty. filed Apr. 19, 2015). Discovery is proceeding in the case.
- Meador v. Apple, Inc., No. 6:15-cv-715-MHS-KNM (E.D. Texas filed July 28, 2015). On Aug. 16, Magistrate Judge K. Nicole Mitchell filed an order recommending that Apple’s motion to dismiss be granted, and as of Jan. 5, objections to that recommendation were filed but a final order has not been entered.
- Id. at Pl.’s Compl., para. 28–33.
- Doyle, 248 P.3d at 951.
- Texas A&M Transp. Inst., An Evaluation of the Effectiveness of Voice-To-Text Programs at Reducing Incidences of Distracted Driving (Apr. 2013), static.tti.tamu.edu/swutc.tamu.edu/publications/technicalreports/600451-00011-1.pdf. This study compared voice texting using Siri and Vlingo apps and found that driver reaction times doubled when using these features and that it took drivers longer to complete the voice-activated texting task than if texting was done manually.
- In its March 2010 white paper Understanding the Distracted Brain, the National Safety Council summarized more than 30 studies that compared the safety of hand-held to hands-free cell phone use, concluding that hands-free use conferred no safety benefit over hand-held devices: tinyurl.com/ccfj5ej.
- Studies show that only about 2.5 percent of people are good multitaskers. See, e.g., Jason M. Watson & David L. Strayer, Supertaskers: Profiles in Extraordinary Multitasking Ability, 17 Psychonomic Bull. & Rev. 479 (2010).
- David L. Strayer et al., Talking to Your Car Can Drive You to Distraction, Cognitive Res.: Principles & Implications (in press, 2016). One highly publicized study found that talking on a cell phone—not dialing or texting—while driving did not increase crash risk. Sheila G. Klauer et al., Distracted Driving and Risk of Road Crashes Among Novice and Experienced Drivers, 370 New Eng. J. Med. 54 (2014). Manufacturers likely will use this study to argue that if talking on a phone did not increase crash risk, then using voice-activated devices or IVIS also would not increase crash risk. But the study’s authors cautioned against assuming there was no risk in talking on a cell phone. And since its publication, a number of researchers have questioned this study’s validity. See, e.g., Ronald R. Knipling, Naturalistic Driving Events: No Harm, No Foul, No Validity, Proceedings of the Eighth International Driving Symposium on Human Factors in Driver Assessment, Training and Vehicle Design (2015), drivingassessment.uiowa.edu/sites/default/files/DA2015/papers/030.pdf.
- Nat’l Highway Traffic Safety Admin., Blueprint for Ending Distracted Driving (2012), tinyurl.com/hts3p5s. The agency’s in-vehicle device guidelines were released in 2012: tinyurl.com/zc4xn5n.
- Visual-Manual NHTSA Driver Distraction Guidelines for Portable and Aftermarket Devices, 81 Fed. Reg. 87656, (Dec. 5, 2016). The public comment period ends Feb. 3.
- One device, Cell Control, seems to have solved the issue of distinguishing drivers from passengers: www.cellcontrol.com. Activities that would be locked out include displaying video not related to driving, displaying certain images or scrolling text, and manual entry of text messages.
- For example, Navdy is a device that uses a heads-up display to project information on the windshield in the driver’s view so that, according to its manufacturer, drivers will not have to look away from the road to interact with their smartphones. This blog article discussed many of Navdy’s claims when the product was first launched: tinyurl.com/hn4x46h.