December 16, 2009Client Alert

The Next Wave of Product Liability Litigation: Distracted Driving

The cellular phone industry’s alleged cover-up regarding the dangers of using a cellular phone while driving may prove to be the next wave of product liability litigation. This past week, the New York Times published an article titled, “Promoting the Car Phone, Despite Risks,” which detailed the cell phone industry’s promotion of cellular phone use while driving, despite being aware of the risks of increased accident rates as early as the 1960s.

To date, there has not been a successful distracted driver product liability lawsuit against the cellular phone industry and many experts argue that such a suit will never succeed. However, that may speak less to the potential validity of the claim, than to the fact that the right case has yet to be filed. Of the two major cases that have been brought against the cellular phone industry regarding distracted driving, neither was filed by a party that owned or was using the cellular phone involved in the accident. Furthermore, neither case cited expert opinions, data, and evidence of former cellular phone industry engineers and executives suggesting that it was foreseeable that promoting cellular phone use while driving would result in a marked increase in car accidents. The Times article appears to provide much of this missing data.

Why cellular phone companies could be targeted in distracted driving product liability lawsuits.

The three most likely product liability causes of action against cell phone companies would be: (1) Design Defect - when the foreseeable risks of harm posed by the product could have been reduced or avoided; (2) Inadequate Instructions or Warnings - an omission of a warning that renders the product not reasonably safe; and (3) Failure to Warn - the seller’s failure to provide a warning after the time of sale.

Regarding design defect, the Times article indicated that as early as the 1960s, cellular phone engineers were aware of the need for a locking device to restrict phone calls while driving. If that lock had been added, drivers would not have had the ability to answer the phone, thus averting many accidents. In terms of inadequate instructions or warnings, the Times article suggests that the wireless companies’ goals were to keep consumers talking in their cars. There were no prominent warnings about the risk of using a cellular phone while driving. As the cellular phone industry’s chief spokesman, Steve Largent, admitted in the article, the industry’s efforts to educate drivers on the dangers of distracted driving have fallen short. Finally, regarding the cellular phone industry’s failure to warn after the time of the sale, the Times article indicates that executives and engineers at these companies were aware that distracted driving was causing accidents, but did not proactively warn consumers. And although the industry recently has supported stringent laws and robust efforts to eliminate such things as texting while driving, plaintiffs’ lawyers undoubtedly will argue that this is too little, too late.

The issue of distracted driving is here to stay.

In September 2009, the United States Department of Transportation hosted a two-day “Distracted Driving Summit” that included academics, trade unions and consumers who discussed how to reduce the thousands of deaths, injuries and accidents caused by distracted driving. The federal government, state legislatures and consumer interest groups are all looking to curb distracted driving. Consequently, it is quite likely that the next front in the battle to reduce distracted driving may be product liability lawsuits against businesses that manufacture or provide services that purportedly distract drivers.

Other businesses may be targets of product liability lawsuits.

Cellular phone manufacturers and cellular service providers are not the only businesses that may be targets of product liability litigation related to distracted driving. Manufacturers of in-car entertainment systems, MP3 players, Bluetooth devices, GPS systems, and companies that produce software, manufacture parts or provide services which are deemed distracting to drivers, are all potentially vulnerable to this potential new wave of product liability lawsuits.

For more information, please contact one of the authors of this alert.

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