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Distracted Driving

Tripp Segars, Esq.
Diaz Law Firm
Madison, MS

Joel Feldman, Esq., MS
Anapol Weiss
Philadelphia, PA

Todd Clement, Esq.
The Clement Firm
Dallas, TX

Distracted Driving – The New Dram Shop?

When someone is injured as a result of distracted driving, it is not just the apparent tortfeasor who may be liable.  Liability can spread to others, including employers and those who are communicating with you through calls, texts and social media.  Much like when a bartender continues to serve an already intoxicated individual, those who communicate with you when they know you are driving could face liability if you cause an accident.

I. What is Distracted Driving?

The U.S Department of Transportation (DOT) defines distracted driving as follows:

Distracted driving is driving while engaged in any activity that could divert a person’s attention away from the primary task of driving.  Distraction occurs any time you take your eyes off the road, your hands off the wheel, and your mind off your primary task: driving safely. Any non-driving activity you engage in is a potential distraction and increases your risk of crashing.[1]

Some researchers have employed different, more comprehensive definitions to facilitate collection of more rigorous crash data:

  • Driving with reduced attention and concentration on the primary task of driving where a driver is delayed in recognition of information necessary to safely accomplish the driving task because some event, activity, object or person within or outside the vehicle compelled or tended to reduce the driver’s shifting attention away from the driving task.[2]

II. What are the Different Types of Distracted Driving?

There are 3 major types of distractions:

  • Manual – taking one or both hands off the wheel while driving
  • Visual – looking away from the road either within the interior of the car or the exterior
  • Cognitive – being mentally engaged in some activity that reduces the concentration and attention devoted to the task of driving

Cognitive distractions are less obvious and likely are involved in most distracted driving crashes.

 III.       Summary of Facts Concerning Distracted Driving[3]

  • In 2014, a minimum of 3,179 people were killed and 431,000 injured as a result of distracted driving.
  • In 2010, eighteen percent (18%) of crashes involving injury were reported to be affected by distractions.
  • In 2011, it was estimated that in a typical daylight moment, at least 660,000 vehicles were being driven by drivers using hand-held cell phones.
  • Drivers under the age of twenty (20) comprise the largest proportion of distracted drivers.
  • Forty percent (40%) of teens report being in a car with a person who was using a cell phone while driving in a way that put others in danger.
  • The fatal crash rate per mile driven for 16-19 year olds is nearly three (3) times the rate for drivers over the age of twenty (20).
  • Drivers who use hand-held devices are four (4) times more likely to be in a crash serious enough to cause them injury.
  • The impairment to driving while using a cell phone has been suggested by studies to be equivalent to driving at the legal limit of blood alcohol content, which is .08.
  • Sending or receiving a text on average takes a driver’s eyes of the road for 4.6 seconds.
  • Driving while engaging in a cognitively demanding task, such as using a cell phone, reduces the amount of brain activity devoted to driving by thirty-seven percent (37%).
  • Injuries to pedestrians using cell phones increased from 2004-10.

IV. The Number of Crashes Reported Involving Cell Phone Use is Likely Vastly Underreported[4]

In a study released in April 2013, the National Safety Council (NSC) analyzed data from the Fatal Accident Reporting System (FARS) and concluded that it was likely that fatal crashes attributable to cell phone use were underreported.  A convenience sample of identified crashes where the driver admitted to cell phone use was compared to data in FARS for those specific crashes. FARS data only indicated that cell phones had been reported to be involved in forty percent (40%) of the crashes in 2010 and fifty percent (50%) of the crashes in 2011. The reasons offered for the failure of FARS to report cell phone involvement included the following:

  • Police reliance on statements of drivers and witnesses who may not have been reliable or honest;
  • Police not investigating cell phone use if it was not a violation, or a primary violation in their jurisdiction;
  • Police not investigating cell phone use if a more obvious violation was identified, i.e. speeding, lane departure or impaired driving; and
  • Difficulty of obtaining cell phone records and causally relating them to the precise moment of crash.

Presumably, the underreporting of cell phone use in crashes goes beyond just the crashes involving death.

Failure to accurately reflect cell phone involvement as a cause of crashes is problematic because FARS data and other sources of data concerning cell phone use in crashes are used to determine the following:

  • Safety priorities;
  • Funding decisions;
  • Media attention;
  • Legislation; and
  • Vehicle and roadway engineering priorities.

As a result, the NSC recommended the following:

  • Distracted driving cell phone crash statistics should only be described as the minimum number collected and reported.
  • Policy makers should assume that cell phone involvement in crashes is substantially greater than reported when making decisions.
  • Feasibility studies should be conducted to determine if an under-reporting correction for cell phone use is possible.

V. Recent Studies Suggest That More Than 50% of Serious Teen Crashes are Caused by Distraction

University of Iowa researchers studied  the extent  to which teen driver distraction was involved in crashes by viewing videos from 1,691 in-vehicle cameras taken for the six (6) seconds leading up to the crash. The results indicated that some form of distraction was involved in fifty-eight percent (58%) of the crashes studied, with speaking to passengers and cell phone use as the two most frequent causes. The frequency of distraction-involved crashes was found to be about four (4) times that previously reported by NHTSA, which was fourteen percent (14%).[5] Some of the research videos are available for viewing.[6] 

VI. Traffic Fatalities Increased from 2014-2015, Reversing A Downward Trend From 2007-2014, With Those Caused By Distraction Increasing at a Faster Rate Than Any Other Cause

In 2015, we saw the largest percentage increase in traffic fatalities in fifty (50) years, reversing what had been a general downward trend in traffic fatalities since 2007.  In its “2015 Motor Vehicle Crashes: Overview,” the NHTSA noted that there was a seven point two percent (7.2%) increase in fatalities in 2015 as compared with 2014. In looking closer at the data, for fatalities attributable to “Human Choice,” it was found that no category increased as much as fatalities attributable to distracted driving. Specifically, distracted driving fatalities increased by eight point eight percent (8.8%), fatalities attributable to failure to wear seat belts increased by four point nine percent (4.9%), from impaired driving increased by three point two percent (3.2%) and from speeding increased by three percent (3%).[7]

In a 2016 Governor’s Highway Safety Association (GHSA) report, it was found that crash fatalities for teens increased by ten percent (10%) in 2015; a greater percentage than for any other age group.  Preliminary estimates for 2016 suggest that this awful trend will continue and that 2015 was not an aberration.[8] 

VII.     Distractions – How Manual and Visual Aspects of Driving are Affected

With many of the distractions, there are manual, visual and cognitive aspects. However, just focusing on the manual and visual aspects of various activities highlights how driving performance and safety may be reduced. The following examples provide information on the discrete acts necessary to accomplish these distracting driving activities and how often manual and visual distractions are not separate but intertwined.

In order to dial a hand-held cell phone one must reach for and hold the cell phone with one hand, taking that hand off the steering wheel, looking away from the road at the cell phone to dial, either using the hand that is off the wheel or using both hands and then taking the cell phone and bringing it close to one’s face for listening and speaking.

To eat food while driving, one must reach for the food, take a hand off the wheel to do so and look away from the road, often unwrap the food’s package and look away from the road to do so.  In some situations, if it is not easy to unwrap the food with one hand, then it may be necessary to bring that hand up to the steering wheel to use the hand holding the steering wheel to help by holding the food or wrapper, and then, as one eats, to look down at the food and away from the road.  If a portion of the food falls, then one looks down and away from the road to see where it has fallen, i.e. to see if it has stained one’s clothes, and if it is necessary to reach down to brush the food away or to pick the food up.

These are 2 examples of distracted driving broken down into the physical aspects and visual consequences of the behavior. What is not included is how these activities affect our concentration on the driving task itself.

VIII.    Increased Likelihood of Crashing While Engaged in Specific Tasks While Operating a Vehicle[9]

  • Text Messaging                                        23 times greater odds of crashing
  • Rummaging Through Grocery Bag      10 times greater odds of crashing
  • Writing on pad or notebook                     9 times greater odds of crashing
  • Using calculator                                          8 times greater odds of crashing
  • Looking at a map                                         7 times greater odds of crashing
  • Dialing cell phone                                        6 times greater odds of crashing
  • Personal grooming                                       4 times greater odds of crashing
  • Reaching for object in vehicle                    3 times greater odds of crashing

You will notice that texting while driving provides for the greatest likelihood of crashing. It should be known that the public strongly supports a ban on texting while driving.  A survey in 2008 by the AAA Foundation for Traffic Safety determined that ninety-four point one percent (94.1%) of drivers consider it unacceptable for a driver to send text messages or e-mail while driving and eighty-six point seven percent (86.7%) consider text messaging and e-mailing by drivers to be a serious threat to their personal safety.[10]

IX. Cognitive Distractions 

A. Use of a cell phone while driving increases crash risk four (4) times

Several studies have documented that cell phone use while driving, including hands free, increases the crash risk four fold.  One study looked at the cell phone records of those involved in crashes without injuries and compared cell phone use over several intervals and determined that the odds of a crash increased four (4) times when the drivers were using their cell phones.[11]

A similar study was performed but used only crashes that required the driver to be transported to the hospital for medical care and reached the same conclusion, which is that the odds of crashing were four times higher when drivers were using their cell phones.[12] 

B. Drivers using cell phones are impaired in driving performance similarly to those driving with blood alcohol levels of .08 

In a frequently cited study, driving performance on a simulator was compared for those who were conversing on a cell phone with those whose blood alcohol was at the “legal limit” of .08.  It was found that the impairment that drivers suffered from using a cell phone while driving was as profound as that of driving while legally intoxicated.[13] An interesting video demonstration “testing and confirming” this finding can be found on an episode of the Disney Channel’s show, MythBusters.[14]

C. Hands-free cell phone use while driving is not safer than hand-held cell phone use

Analysis from the Highway Loss Data Institute compared U.S. States that imposed bans on driving while using a hand-held device with those without bans and found no safety advantage for prohibiting hand held cell phone use.[15]  The National Safety Council (NSC) has created a white paper that includes summaries of approximately thirty (30) studies comparing hands-free and hand-held cell phone use while driving.[16]

Additionally, most U.S. States’ laws restrict cell phone use and texting while driving.  For a comprehensive listing of the laws, including maps, of states that restrict cell phone use and texting, visit the Insurance Institute for Highway Safety.[17]

D. Inattention blindness

Given studies suggesting the same level of impairment for hands-free and hand-held cell phone use, it has been suggested that the source of the impairment is cognitive as opposed to a manual distraction with one hand holding the cell phone.  Strayer, et al. has suggested that the cell phone conversation itself induces a form of “inattention blindness,” which diverts attention from processing the information necessary to safely operate a motor vehicle.  Brain activity associated with processing information for safe driving is suppressed when drivers talk on a cell phone. The driver fails to see information in the visual field because it is not encoded in one’s brain as well as it is when there is no cell phone conversation distraction. Additionally, when called upon to react quickly, those drivers using a cell phone will be less able to do so because of the diversion of attention from driving to the phone conversation.[18]

Estimates indicate that drivers using cell phones look but fail to see up to fifty percent (50%) of the information in their driving environment.[19]  Their field of view narrows.  They are looking out the windshield but do not process everything in the roadway environment necessary to respond to all situations.

E. Change blindness

Another phenomenon being studied by neuroscientists is “change blindness.” Think of driving and during the course of driving something changes in your visual field, i.e. a car suddenly applies its brakes, or a child starts to run across the road. It is believed that being cognitively distracted interferes with the ability of drivers to notice changes in the driving environment.

Change blindness involves a new event, whereas inattention blindness does not.  With change blindness, the inability to see, comprehend and react to something already in the visual field occurs because of competing cognitive demands.

F. Tunnel vision

 Studies show that when a driver is not cognitively challenged by activities other than the primary task of driving, drivers will regularly scan, from side to side, a large portion of the roadway in front of them.  When that same driver participates in a cell phone conversation while driving, the driver’s scanning is markedly reduced, resulting in what has been termed “tunnel vision.”[20]

G. Can we do two things at the same time? Driving and listening

Behavioral studies have demonstrated that engaging in a secondary task such as talking on a cell phone disrupts driving performance. To determine the biological reason for the observed decrease in performance, a study was performed which measured brain function while driving on a simulator with and without listening and responding to true false questions. A functional MRI was used, which allowed researchers to observe increases or decreases in brain function and activation.

The study revealed that adding a sentence-listening task resulted in reduced driving accuracy and decreased activation of the areas of the brain associated with driving by about thirty-seven percent (37%). The study suggested that there was a limit on the overall amount of brain activation in concurrent dual-task situations even though the tasks draw on two different areas of the brain, as is the case with auditory processing and driving performance.[21]

H. Hands-free does not mean “risk free”[22]

There are a myriad of activities that drivers engage in that are likely to divert attention from the primary task of driving. A recent study analyzed different types of distractions in an attempt to quantify the extent of cognitive demand and adverse effects on driving and to compare, in a relative fashion, the different types of distractions.

Each of the tasks studied, with the exception of using a hand-held phone, was performed hands-free in an attempt to isolate impairment to cognitive demands. The tasks studied ranged from a baseline with no concurrent tasks or potential distractions, to tasks with concurrent tasks of listening to a radio, listening to a book on tape, conversation with a front seat passenger, conversation on a hand-held cell phone, conversation on a hands-free cell phone, using a speech-to-text system built into the car and performance of simultaneous math and memorization tasks.

The studies were used to develop a relative risk rating system for cognitive distractions, ranging from lower risks of listening to a radio or audio book, to performing the simultaneous math and memorization task constituting a high risk. The results and relative cognitive workload demands for each task were as follows:

  • Baseline                                                           1.0
  • Listening to the radio                                      1.21
  • Listening to an audio book                             1.75
  • Hands-free cell phone                                     2.27
  • Conversation with passenger                          2.33
  • Hand-held cell phone conversation                2.45
  • Speech-to-text                                                 3.06

The authors were hopeful that the study would assist crafting scientifically-based policies on driver distraction and, perhaps, give pause to the recent rush to incorporate voice-based interactions by auto manufacturers in vehicles without further study.

I. Research Suggests That Voice-Activated Devices, Smartphones and Infotainment Systems, are Distracting to Drivers

Three studies looked at the reaction times of drivers using voice-activated features on smartphones and infotainment systems and found that drivers who used voice-activated features on their phones had significantly increased reaction times for detecting potential hazards for up to eighteen (18) seconds, even after stopping the smart phone use; use of hands-free voice commands on smart phones found to be highly distracting to drivers;  voice-dialing, voice-contact calling and music selection using in-vehicle “infotainment” systems were examined  in ten (10) model-year 2015 vehicles –  three (3) were rated as moderately distracting, six (6) as highly distracting and the system in the 2015 Mazda 6 as very highly distracting.[23]

X. Distracted Driving – Making the Case 

A. Juror Motivation 

A great deal of research has been done in recent years as to what motivates jurors in catastrophic personal injury cases. The prevailing opinion for many years was that anger, outrage and sympathy were the impetus to large verdicts. More recent research has revealed that jurors are often motivated by their most basic instincts – the portion of the brain that values most highly self preservation and preserving the species by protecting the young and the community.  We know this is the case from simply understanding nature and ourselves. Animals will attack anything that threatens themselves or their young. Is there any one of us who would not risk our lives to protect our children in a situation of extreme danger?

B. Jury Appeal 

Why do collisions which involve cell phones and texting create a perfect storm for jurors to be motivated to protect themselves, their young and their community by returning a large verdict? How many jurors, even the most conservative jurors, need to be convinced that cell phone use is dangerous?  The answer is clear in light of this simple question:

Twenty years ago, when you saw someone driving recklessly and dangerously, what was your first thought?  That person is drunk!

Now, when you see someone driving recklessly and dangerously, what is your first thought?  Put the phone down!

Let’s examine the most common argument defendants make to excuse collision causing cell phone use. How can our company be punished for something everyone, including the vast majority of jury members, do themselves? The answer is simple. Surveys show that while cell phone use is the one activity most jurors think they can do safely, but they very much do not want others to do so because they perceive it to be very dangerous. A Consumer Reports survey found that 58% had seen a dangerous driving situation related to a distracted driver in the past month.[24]  Jurors want a RULE that is enforced that prevents this danger.

There is no more fertile ground for the argument in favor of self-preservation and protecting the community than through a large cell phone verdict. The jurors will think that by rendering a large verdict, they can motivate others to be safer and prevent other drivers from doing the one thing that they perceive threatens them and their children the most as they drive. 

C. Employer Liability

 The number of fatal work injuries involving transportation incidents, the incident leading to the most fatal work injuries, increased in 2015. Roadway incidents were up nine percent (9%) in 2015 to 1,264 and accounted for twenty-six percent (26%) of all fatal work injuries.[25]             Do you check work email, send text messages or make work calls while driving? The NHTSA has conducted research suggesting that drivers cite work-related communications as a reason to use phones while driving, but what does that mean for employers?             Simply put, when an employee causes a crash while using his or her cell phone or texting, an employer faces significant exposure if it has failed to have a concrete enforced policy banning cell phone use and texting while driving. This can be true regardless of whether the employer believes the employee is acting within the scope of his or her employment.             In a 2015 white paper on employer liability, the National Safety Council referenced a number of legal cases where employers were found liable for their employees’ distracted driving.  Some of the cases referenced are the following:[26]

  • $2 Million+ – Law Firm
    Crash in Virginia
    An attorney was talking on her cell phone when she struck and killed a 15-year-old girl in a hit-and-run. The attorney did not see the pedestrian; allegedly she claimed that she thought she had hit a deer. Her firm settled for an undisclosed amount. A jury ordered the attorney to pay about $2 million in damages, and she was charged with a felony and served one year in jail on work release. One factor in the suit was the billable hours that the attorney typically charged to clients while talking on her cell phone. ·
  • $21 Million – Soft Drink Beverage Company
    2010 Crash in Texas
    A company driver was talking on a hands-free headset, in compliance with her company’s policy which allowed hands-free use while driving, when she struck another vehicle broadside and seriously injured the driver. A jury held the company liable to pay $21 million in compensatory and punitive damages to the injured driver. ·
  • $21.6 Million – Technology Company
    2007 Crash in Florida
    A jury found the driver and the corporation that owned the company car liable when the driver rear-ended another vehicle on the freeway, causing the vehicle that was struck to cross the median into oncoming traffic lanes. The crash resulted in a fatality at the scene. Cell phone records show that the employee driver who rear-ended the vehicle was using a cell phone at the time of the crash. According to testimony, she may have been talking with her husband.There are examples involving texting, off-duty officers, employees who are “off the clock” and others where the fact patterns may surprise you; however, jury verdicts and confidential settlements have occurred.What does this mean? Preventable is inexcusable. What can you do to protect yourself and prevent this from happening? Employers should create and adhere to policies that exceed existing rules and regulations.  A growing practice is for employers to develop cell phone policies to follow best safety practices, reduce risk and minimize liability.  Many companies do not have policies in place, have inadequate advisory policies or have unenforced policies that are just for show. There are many web-based resources for effective cell phone policies, including a comprehensive free policy and education kit authored by the National Safety Council.[27]  Consider using the NSC policies as an example of best practices and compare the employer’s policy to those policies.  An example cell phone policy is attached as Appendix A.Without a ban, the employer loses either way.  The first position they can take is to admit that they did not recognize the problem. This position is ridiculous in light of the media storm and jurors own knowledge, but it permits the attorney to effectively motivate the jurors to educate the employer through large damage awards. The second position is the one most jurors will believe is the case regardless of the employer’s testimony, namely that the employer knew about the problem, but did not choose to take decisive to prevent it. This leads to arguments such as they “knew better, but did not do better” and “preventable is inexcusable,” which may likewise lead to large jury awards.

    The policies should include hand-held and hands-free devices and encompass all employees, all company vehicles, all company cell phone devices and all work-related communications (even in a personal vehicle or on a personal cell phone).  The National Safety Council has a wealth of information on this topic.

    A proper policy, in and of itself, does not insulate a company from responsibility. The employer must also educate the workforce as to its policy, the dangers behind it and the penalties for failing to comply. Finally, the employer must also enforce the policy through monitoring and the use available technology or be faced with the Catch 22 of recognizing the significant danger yet addressing it only with a “lip service” policy. Enforced employer policies markedly decrease cell phone usage.  A 2010 Strength in Numbers Fleet Benchmarking Study, sponsored by the Network of Employers for Traffic Safety (NETS), revealed the top safety performers are companies with policies totally banning cell phone use (handheld and hands-free) and establishing strong consequences—including termination—for employees who violate such policies.[28]  The NETS Strength in Numbers members offer tips when constructing a corporate mobile device policy:

    • Make sure you have a policy, not a guideline. Guidelines are typically interpreted as suggestions and are more difficult to enforce.
    • Policy language must be clear. One member’s policy prohibits employees from using “any electronic device in any gear other than park.” Another company’s policy language clearly prohibits “all electronic devices” so there is no confusion over which devices are allowed—they ban them all.
    • Contractors should abide by the same rules as employees. Make sure the policy also covers any contractors working on behalf of the organization and that they are aware of and have signed off on the policy.
    • Enforcement is key. One NETS member emphasized they make sure their employees and contractors understand “if you break the rules, you don’t work for us.”

D.    Distracted Driving Discovery 

If you are pursuing a case in this realm, it is important to remember there is a lot of discovery available to you; however, it can sometimes be difficult to retrieve.  Examples of discovery include the following: ·

  • Driver cell phone records (which may reveal when and the amount of time during the workday an employee is using the phone)
  • Cell tower records (where the calls begin in one location and end in another, which can provide cell phone use while driving)
  • Texting records (which can show if the driver was texting at the time of the incident)
  • Details about an employer’s cell phone policy and the extent of its implementation and enforcement)

1.      Think Outside the Box

While the most common cell phone distractions involve talking and texting/email, remember, in today’s world, cell phones and tablets are very powerful portable computers that enable many other distractions such as:

  • Watching movies and videos
  • Taking pictures
  • Interacting with social media
  • Playing games
  • Playing music
  • Reading books/websites
  • Interacting with apps

2.      Obtainable Information from Carriers Most people are aware that the date and time and phone numbers of calls and texts can be obtained through deposition on written questions to cell phone providers, but that is only scratching the surface of what the information that is available. With the assistance of a forensic expert, more can be learned. Whether it is through YouTube or Netflix, watching videos and movies necessarily requires significant amounts of data.  Requests for data information can reveal the date and time of the data use as well as the cell tower involved in the transaction. Forensic examiners can then establish that the download took place while driving even though absent the phone, the nature of the data will not be revealed.

3.      Deposition on Written Questions to Cell Phone Carriers In all substantial cases, attorneys should request the defendant’s cell phone number and carriers and the defendant’s tablet data carrier and account number in interrogatories and file motions to compel if the information is not provided. Defendants will claim that this is an improper “fishing expedition,” but remember the test is whether it could lead to the discovery of relevant evidence.

The following discovery tools are attached to this paper as Appendix B:

  • Sample deposition on written questions and subpoenas for conventional phone, cell tower and text records
  • DWA form that is comprehensive and also requests data usage
  • Discovery contact information for all major cell phone carriers
  • The data retention policy of major cell phone carriers.

Also attached, as Appendix C, are sample interrogatories, requests for production and a request for inspection.

4.      Obtainable Information from the Phone Itself

Forensic cell phone experts will advise that it is important to obtain the cell phone the cell phone via TRO or agreement as soon as possible after the wreck. The phone can be shipped to the experts and then downloaded in a matter of hours before being shipped back to the defendant.

A forensic cell phone expert often can extract the following information for the date and time of the crash:

  • Actual text messages
  • App activity
  • Web searches to disable safety equipment
  • Snapping photos while driving
  • Interactions with social media while driving
  • Habitual driving while texting, talking or interacting with cell phone

A forensic examiner can also use other technology, like telematics, to interact with the cell phone or tablet data and verify and/or disprove activity and locations.

Obviously, privacy concerns are often cited in opposition to this discovery.   Forensic download of the phone renders every aspect of a person’s interaction with their phone or tablet bare to the examiner. This concern is alleviated by a well-crafted protective order which instructs him only to examine and communicate data germane to the crash which he adheres to without fail.

Even if the phone is “lost” or “destroyed” by defendants, their data may still be retrieved through the cloud services that back up the phone.   The information can be subpoenaed through Apple by simply Google searching “icloud subpoena address.”

 E. Expansion of Liability in Distracted Driving Crashes

  1.  Remote Texter Lawsuits
    Recently cases are being filed not only against texting drivers, but also against those who facilitated the drivers’ texting, or use of an app, which resulted in a crash.  In 2013, the Appellate Division of the New Jersey Superior Court held that under limited circumstances, a valid cause of action would exist against someone not present in the driver’s vehicle but who texted the driver resulting in a crash.[29]  It was held that the “remote texter” owed a duty to those injured if it was known at the time the text or texts were sent that the recipient was driving and would continue to drive and read the text, causing the driver to be distracted.
  1. Uber
    Uber was sued for contributing to the distraction of its independent contractor drivers by requiring drivers to manually input data in its app while driving in order to accept fares.[30]
  1. Snapchat
    Snapchat and an allegedly distracted driver were sued under the theory that Snapchat encouraged drivers to drive at excessive speeds in order to take selfie’s using Snapchat’s speed filter to imprint the speed the vehicle was going on the photo or video, in this case, allegedly more than 100mph.[31]
  1. Apple (iPhone)
    You may have seen that in January of 2017, a class-action suit was filed in California regarding Apple’s refusal to install a “lock-out device” in its smart phone to prohibit drivers from using the iPhones while operating their vehicles.  In this case, Plaintiffs’ argue that the device is necessary to ensure drivers give their full attention to the road.  The named plaintiff was hit by a texting motorist while sitting at a red light.[32]As seen in another case involving Apple, the company had the technology for the device since 2008 and the patent since 2014.  Apple was sued when a driver who was texting on an iPhone caused a crash that resulted in two deaths and paralysis of a child.  It was alleged that Apple should have incorporated in the iPhone a “lock-out” mechanism to prevent texting while driving.[33]  Apple’s filing of a patent in 2008 for that specific lock-out mechanism was cited in the Complaint as proof of Apple’s knowledge of the dangers posed by texting drivers and as an alternative design that would have prevented the crash.In the past, lawsuits against cell phone manufacturers and service providers have traditionally not met with much success.[34]  In each of these cases, the courts were unwilling to impose a duty on the cell phone or texting system supplier or service provider just because it may have been foreseeable that drivers may choose to interact with devices to their distraction.Will Apple be able to convince a court that use of an iPhone while driving was not foreseeable or constituted a misuse of its product given its patent application? Will the proliferation of iPhones and the almost cavalier disregard of the dangers of texting by drivers compel courts to allow suits against Apple and other cell phone manufacturers for failing to prevent drivers from texting while their vehicles were moving?  Time will tell.

XI. Trial Lawyers Volunteering in Their Communities to Speak With Students About Distracted Driving 

The American Association for Justice (AAJ) has joined forces with EndDD.org (End Distracted Driving) to reach more than 100,000 students in all 50 states in the U.S. during the 2016-17 school year. Trial lawyers are being recognized across the country for their commitment to this life-saving project.[35] See also references from high school principals attached to these materials.

A power point presentation, with script, training materials and other resources are available to make it easy for trial lawyers to reach out in their communities to schedule presentations.  To find out how to join this campaign, please visit the End Distracted Driving website.[36]

[1] https://www.distraction.gov/stats-research-laws/facts-and-statistics.html (last visited on 2/14/17).

[2] AAA Foundation for Traffic Safety – http://www.nsc.org/DistractedDrivingDocuments/The-role-of-driver-distraction-in-traffic-crashes.pdf (last visited on 2/14/17).

[3] https://www.distraction.gov/stats-research-laws/facts-and-statistics.html (last visited on 2/14/17).

[4] Crashes Involving Cell Phones-Challenges of collecting and reporting reliable crash data.  National Safety Council, April 2013.  http://www.nsc.org/DistractedDrivingDocuments/NSC-Under-Reporting-White-Paper.pdf (last visited on 2/14/17).

[5] Using Naturalistic Driving Data to Assess the Prevalence of Environmental Factors and Driver Behaviors in Teen Driver Crashes. AAA Foundation for Traffic Safety, March 2015. https://www.aaafoundation.org/sites/default/files/2015TeenCrashCausationReport.pdf (last visited on 2/14/17).

[6] https://www.youtube.com/watch?v=SDWmwxQ_NnY&feature=youtu.be (last visited on 2/14/17).

[7] 2015 Motor Vehicle Crashes: Overview. National Highway Transportation Safety Administration (NHTSA), August 2016. https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812318 (last viewed on 2/14/17).

[8] Mission Not Accomplished:  Teen Safe Driving, the Next Chapter. Governors Highway Safety Association, 2016. http://www.ghsa.org/sites/default/files/2016-12/FINAL_TeenReport16.pdf (last visited on 2/14/17).

[9] Driver Distraction in Commercial Vehicle Operations.  Federal Motor Carrier Safety Administration, September 2009 (p. xxi – Table 3). https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/DriverDistractionStudy.pdf (last visited on 2/14/17).

[10] www.aaafoundation.org/pdf/textingFS091012.pdf (last visited on 2/14/17).

[11] Redelmeier, D.A. and Tibshirani, R.J. (1997). Association Between Cellular-Telephone Calls and Motor Vehicle Collisions. The New England Journal of Medicine, 336; 453-458. http://www.nejm.org/doi/full/10.1056/NEJM199702133360701#t=article (last visited on 2/14/17).

[12] McEvoy, S.P., Stevenson, M.R., Mc Cartt, A.T., Woodward, M., et al.  (2005). Role of mobile phones in motor vehicle crashes resulting in hospital attendance: A case-crossover study.  British Medical Journal, 331,428-433. http://www.bmj.com/content/331/7514/428.long (last visited on 2/14/17).

[13] Strayer, D.L., Drews, F.A., and Crouch, D.J. (2006). A Comparison of the Cell Phone Driver and the Drunk Driver. Human Factors, 48(2): 381-391. https://www.distraction.gov/downloads/pdfs/a-comparison-of-the-cell-phone-driver-and-the-drunk-driver.pdf (last visited on 2/14/17).

[14] Cell Phone vs. Drunk MiniMyth. http://www.discovery.com/tv-shows/mythbusters/videos/cell-phone-vs-drunk-driving-minimyth/ (last visited on 2/14/17).

[15] Hand-Held Cellphone Laws and Collision Claim Frequencies. Highway Loss Data Institute Bulletin, December 2009.  http://www.iihs.org/media/1afa0aef-990d-4888-9039-3be5fa6ff514/ue4d5w/HLDI%20Research/Bulletins/hldi_bulletin_26.17.pdf (last visited on 2/14/17).

[16] Understanding the Distracted Brain – Why driving while using hands-free cell phones is risky behavior. National Safety Council, April 2012. http://www.nsc.org/DistractedDrivingDocuments/Cognitive-Distraction-White-Paper.pdf (last visited on 2/14/17).

[17] http://www.iihs.org/iihs/topics/laws/cellphonelaws (last visited on 2/14/17).

[18] Strayer, D.L., Watson, J.M., and Drews, F.A . (2011) Cognitive Distraction While Multitasking in the Automobile.  The Psychology of Learning and Motivation, 54, Academic Press, 29-58.  http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.707.2286&rep=rep1&type=pdf (last visited on 2/14/17).

[19] Strayer, D.L. (2007, February 28). Presentation at Cell Phones and Driver Distraction.  Traffic Safety Coalition, Washington, D.C.

[20] Understanding the Distracted Brain – Why driving while using hands-free cell phones is risky behavior. National Safety Council, April 2012 – referencing Transport Canada’s Ergonomics Division, Noy, Y.I.  Human Factors Issues Related to Driver Distraction – slide show presentation. http://www.nsc.org/DistractedDrivingDocuments/Cognitive-Distraction-White-Paper.pdf  (last visited on 2/14/17).

[21] Just, M. A., Keller ,T.A., and Cynkar, J. (2008). A decrease in brain activation associated with driving when listening to someone speak. Brain Research, 1205, 70-80. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2713933/ (last visited on 2/14/17).

[22] Strayer, David L., Cooper, Joel M. et al. Funding provided by AAA Foundation for Traffic Safety. Measuring Cognitive Distractions in the Automobile (June 2013). https://www.aaafoundation.org/sites/default/files/MeasuringCognitiveDistractions.pdf (last visited on 2/14/17).

[23] Strayer, David L., Cooper, Joel M. et al. Funding provided by AAA Foundation for Traffic Safety. https://www.aaafoundation.org/sites/default/files/strayerIIIa_FINALREPORT.pdf (last visited on 2/14/17)

[24] https://www.transportation.gov/briefing-room/us-department-transportation-and-consumer-reports-launch-partnership-fight-distracted (last visited 2/14/17).

[25] U.S. Department of Labor, Bureau of Labor Statistics (2016).  National Cencus of Fatal Occupational Injuries in 2015.  https://www.bls.gov/news.release/cfoi.nr0.htm (last visited 2/14/17).

[26] Employer Liability and the Case for Comprehensive Cell Phone Policies. National Safety Council (NSC), May 2015. http://www.nsc.org/DistractedDrivingDocuments/NSC-CorpLiability-WP-lr-(1).pdf. (last visited on 2/14/17).

[27] National Safety Council (NSC) Cell Phone Policy Kit. http://www.nsc.org/learn/NSC-Initiatives/Pages/cell-phone-policy-kit-materials.aspx (last visited on 2/14/17).

[28] http://trafficsafety.org/releases/strict-enforcement-of-cell-phone-bans-boosts-fleet-safety-performance-according-to-nets-study (last visited on 2/14/17).

[29] Kubert v. Best, 75 A.3d 1214 (N.J. Super. App. Div. 2013).

[30] Ang Jiang Liu, Et al v. Uber Technologies, Inc. et al, (CA. Superior Ct. Case No. CGC 14 536979, Jan 27, 2014).

[31] Maynard v. McGee and Snapchat, Inc.,( State Court of Spalding County, Ga.,  March, 2015).

[32] Julio Ceja v. Apple, Inc., (Superior Court of California, LA County, No. BC647057 January 2017).

[33] Meador, et al v. Apple Inc., U.S District Court for the Eastern District of Texas, No. 6:15-cv-715-MHS-KNM.

[34] Williams v. Cingular Wireless, 809 N.E. 2d 473(Ind. Ct. App. 2004) (dismissed case against the manufacturer of the cell phone the defendant driver was using at the time of the crash); Estate of Doyle v. Sprint/Nextel Corporation and Samsung Telecommunications America LLC, 248 P.3d 947 (Okla. Civ. App.2010)(dismissed case against cellular phone service provider for defendant driver who, while using the cell phone, ran a red light causing the crash); and Durkee v. C.H. Robinson Worldwide Inc., et al, 765 F.Supp.2d 742 (W.D.N.C. 2011) affirmed Durkee v. Geologic Solutions, Inc. 502 Fed. Appx 326 (4th Cir. 20130(dismissed case against manufacturer of texting system installed in tractor trailer defendant driver was using at time of crash).

[35] http://www.enddd.org/what-speakers-students-are-saying-about-the-presentation/  (last visited on 2/14/17).

[36] http://www.enddd.org/trial-lawyer-911-campaign/ (last visited on 2/14/17).

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