One of my first jobs as a new lawyer in the early 1990s was representing insurance companies as an associate for a big law firm in product liability lawsuits. The injuries and deaths caused by ubiquitous machines like vehicles, presses and cranes were often horrific.

In some of the suits, the evidence involved whether safety mechanisms purposely had been subverted by the machine operator causing injury. Causation, an element of any tort suit, was the most litigated issue.

Should cell phone manufacturers be required to implement newly developed technology that can block drivers from sending or receiving texts on their phones? The family of a fatally injured distracted driving victim recently filed a lawsuit raising this causation issue.

Apple is named as a defendant in the suit. The pleadings reference a telematics patent granted to Apple that would lock-out a driver's ability to manipulate the phone while driving.

The technology uses sensors that determine whether the phone is moving and its exact location. If the phone is within the space of the driver's seat, certain functions, like texting, are disabled.

Although the patent was granted in 2014, it is unknown whether the tech giant has developed a product with the technology. In its 2008 application for the patent, Apple stated:

Texting while driving has become so widespread that it is doubtful that law enforcement will have any significant effect on stopping the practice. Teens understand that texting while driving is dangerous, but this is often not enough motivation to end the practice.

Some product liability experts have compared cell phone manufacturers to manufacturers of high-capacity magazine guns; they could choose not to manufacture those products but do so anyway.

Not all legal experts, however, agree with the concept of regulating the cell phone industry. The dangers of using a cell phone while driving is squarely placed with the individual driver.

Accordingly, the products liability lawsuit in Texas will likely be dismissed in a summary judgment for a fatal lack of causation. Regardless of the liability of the cell phone companies, we here at the Law Blogger urge you not to text while driving; let's keep everyone safe on our roadways.

Post #560

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Over the years, we have reported on the self-driving Google vehicles and the telematics associated with removing a human driver from the highway experience.  Now, several vehicle manufacturers are bringing hands-free driving options on-line in the upcoming months.

Tessla, Audi and Cadillac are all rolling-out serious hands-free options within the next model year. Mercedes-Benz and Infiniti have had limited versions of hands-free driving for the past few years.

As these options expand, the question becomes: is operating a vehicle "hands-free" legal?  So far, the answer is "yes".

Only New York has a state law, dating back to 1967, that requires that drivers keep one-hand on the wheel. Most other states have no regulation whatsoever regarding the specifics of the steering wheel.

The manufacturers are careful to market the hands-free options merely as temporary relief from the tedious components of our daily drive and not as a way for drivers to completely unplug from the road. This blogger, however, immediately sees the potential to switch on the hands-free option in order to, say, text or email the drive away and get things done.

If this happens, the law will move in; especially as soon as folks start getting seriously injured or killed.  For now, however, the manufacturers are easing these hands-free options into a regulatory void.

Industry professionals consider hands-free driving just the next step in the design evolution of the automobile. Like past innovations such as cruise control and anti-lock brakes, there are no specific government regulations affecting the technology.

But there is a personal injury bar. Once folks start clicking on the hands-free option, tuning out from the road, and picking-up their cell phones, things are bound to go South.  And when they do, the personal injury lawyers will be there to pick-up the pieces.

While the federal government regulates the design and crash-worthiness of vehicles, the states regulate the drivers. Here in Michigan, the home of the automobile, there are specific state laws allowing autonomous technology under certain limited circumstances.

In addition to negligent design product liability lawsuits, there is also local law enforcement standing by to temper the hands-free driving experience.  The road patrol officer will decide, on a case-by-case basis, whether the driver in a crash was at fault [careless or reckless] due to hands-free operation of the vehicle.

Once these vehicles begin rolling out, and crashes start happening, we will know more about the utility and cost-effectiveness of this next step in the evolution of the automobile.

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Although they know they shouldn't, drivers succumb to the lure of operating their cell phones while simultaneously operating a vehicle.

Cell phones have become ubiquitous.  No longer is it good enough to have a cell phone; the thing is plastered to our faces all hours of the day and night, especially when we are driving.

Our culture now demands immediate connectivity, especially among the youth.  In business, the standard is instant availability around the clock.  This is how teenagers live their lives; this is how business gets done.

The problem arises when physics gets in the mix on the highways and byways of our nation.  People that multitask while driving, especially when manipulating the screen of a smart phone, are several times more likely to cause a high-impact collision even than, say, a drunk driver.

The Statistics.  81% of licensed drivers recently surveyed by the insurance industry lobby admitted to using their cell phones while operating a vehicle.  Consistent estimates developed in a series of studies since 1996 conclude that drivers using cell phones are four times more likely to cause a car crash.

According to estimates provided by the National Safety Council, published by the NYT, of the 5.6 million car crashes that occurred in 2012, as many as 1.48 million of those crashes -26%- involved  a cell phone based distraction.

The Technology.   Telematics is an interdisciplinary field at the intersection of telecommunication, vehicular technology, and computer science designed to control, measure and supply advanced function to vehicles on the move.  Recently, start-ups, insurance companies, and at least one mobile provider -Sprint- have invested in the development of technology that blocks the use of a driver's cell phone.

The cell phone manufacturing industry lobby, with the onset of "unlimited' data plans, have begun to shift their opposition to national and state safety regulations on the use of cell phones by car drivers.  Now, Sprint has taken the lead to develop the technology designed to take the choice out of drivers' hands; if you are driving, you cell phone becomes inoperable.

At the forefront of this developing technology comes an American start-up company -Katasi- that has designed a small black box  -about the six of a matchbox- affixed to the steering column of a vehicle that prevents the driver's cell phone from receiving or sending calls or messages.  Apparently, the telematic design of this device allows passengers to continue to operate their phones, while only the driver's cell is disabled.

The problem, however, is that at five years in, the company is no longer a "start-up", and its product still sits on the sidelines because the technology has not been adopted by the big boys: the insurance industry and the cell phone carriers.

Legal Liability.  One of the factors that has operated to limit the adoption of this technology is the concern for legal liability.  Companies are worried that if one stray text breaks through, and the driver causes a crash, the manufacturer will be on the hook for unknown millions.

While legal experts -mostly law professors and not product liability lawyers- conclude such concerns are overblown given the "do-good" nature of the device, the technology has yet to go on-line with a serious manufacturer.

If it becomes an industry standard, i.e. affixed to every car sold in the United States, the revenue plan is that drivers will have to pay approximately $5 per month to keep the device activated.  Law will need to come into play before that happens.

We here at the Law Blogger ask: if the technology is present, can those laws compelling vehicular integration of the device be too far away?  We certainly hope not, given the statistics cited above.

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