Distracted Driving Lawsuit

It’s perhaps inevitable that amid rising concerns about cellphone use and distracted driving a lawsuit has been filed against a cellphone manufacturer and wireless provider by the daughter of a woman killed after her car was hit by a driver talking on his cellphone. A December 6 article in the New York Times by Matt Richtel outlines the details of the suit which alleges the companies failed to provide adequate warnings of the risks of cellphone use while driving. It goes on to cite legal experts explaining why the suit – currently the only such case and one of only a handful ever filed – faces steep challenges. Over at the Consumer Class Actions Mass Tort Blog, Russell Jackson, a partner at law firm Skadden Arps and quoted in the NYT article, offers analysis on why various legal defenses should make this cellphone suit untenable. First and foremost is the common knowledge defense, as Jackson explains:

It is commonly known that using a handheld mobile phone without a hands-free device increases the risk of accidents. Manufacturers warn about it in the product literature. Service providers post billboards about it. Governmental authorities and public interest groups erect signs warning against it. And most notably, it is illegal, and all licensed drivers are charged with knowledge of that law. On this point, tort law is clear: one has no duty to warn of a commonly known hazard. And what sort of warning would possibly alter the behavior of the driver who insists on using a hand-held mobile phone while possessed of the common knowledge about the risks? Simply put, there is none.

Meanwhile, we’re wondering how the concept of personal responsibility fits into all this. After all, there’s plenty of widely-publicized research and data out there that makes clear the risks of cellphone use and driving. Armed with this knowledge consumers continue to take the risk. What do you think? Check out I.I.I. information on cellphones and driving.

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