"a compelling type of legal claim"

In a case which I think epitomizes what is wrong with today's tort system, the daughter of a woman killed in an accident caused by a driver talking on a cell phone has sued Samsung (the phone manufacturer) and the wireless provider.

She hopes to prove that the companies should have foreseen the dangers and that they failed to provide adequate warnings.

Legal experts said her lawsuit, currently the only such case and one of only a handful ever filed, faces steep challenges but also raises interesting questions about responsibility for behavior that is a threat to everyone on the road.

"This is a compelling type of legal claim," said Kenneth A. Bamberger, a professor at the University of California, Berkeley, School of Law. "It deals with the widespread use of a product we now know is involved in significant risk and deals with the ultimate question of who should contribute in minimizing the risk."

The lawsuit, filed in October, involves a crash in Oklahoma City on Sept. 3, 2008. Ms. Smith's mother, Linda Doyle, 61, died after her Toyota Rav4 was hit by a Ford pickup driven by Christopher Hill. Mr. Hill, then 20, told the police he was so distracted by a cellphone call that he ran a red light at 45 miles an hour, hitting Ms. Doyle's car as it crossed in front of him.

Mr. Hill was talking on a Samsung UpStage phone on the Sprint Nextel service. Samsung declined to comment. Sprint Nextel said that it "rejects the claims of negligence" in the suit and that it includes safety messages on packaging and user manuals, on its Web site and in its advertising.

I disagree with Professor Bamberger that it is a "compelling claim." I think it is a wholly frivolous claim, but the fact that it is considered compelling by a professor at one of the top law schools in the country illustrates a major problem with the legal system which needs to be addressed.

Of course, is Professor Bamberger is right, McDonalds, Burger King, KFC, and Taco Bell should be very worried.

Because all of those places provide drive-through windows where food is sold to whomever is behind the wheel, no questions asked, no warnings given. And according to AAA, consumption of food and beverages causes more accidents than cell phones:

According to the AAA findings, 1.7 percent of accidents were caused by those eating and drinking, while 1.5 percent were caused by those using cell phones. Nevertheless, both distractions rated far below the distractions caused by outside events. They included fender benders or animals running into the road, which contributed to 11.4 percent of accidents; those caused by passengers, which contributed to 10.9 percent of accidents; and those attributable to objects falling off car seats, which contributed to 4.3 percent of accidents.
Cell phones and food are not the only distractions. The National Highway Safety Traffic Administration reports that
most drivers engage in activities that take their attention away from the road. These activities include:

* Talking with other passengers: 81%
* Playing with the radio or CD: 66%
* Eating or drinking: 49%
* Using a cell phone: 25%

Which means that not only might the manufacturer of the radio or the CD player be liable, but so might the passenger who talked with the driver.

Furthermore, I was told by police officers in Berkeley that many an accident has been caused by a driver being sexually distracted -- not by someone in the car, but by an attractive person walking down the street. Why should scantily clad young women be allowed to get away with causing accidents?

"But officer! She was compelling! Utterly compelling!"

Don't laugh. One consultant estimated that "5 to 10 percent of distraction accidents have a sexual content."

Of course, there can often be considerable overlap between sex and talking on the phone (it's called phone sex), but is it really fair to see the telephone or the service provider as the distraction? Isn't the object or source of the conversation at least as culpable?

I realize people will say that the driver is responsible, but under our legal system, that does not end the inquiry. It only begins it.

UPDATE: My thanks to Clayton Cramer for the link. (Interesting discussion about the feasibility of alternative designs too.)

posted by Eric on 12.09.09 at 11:00 PM










Comments

Grocery stores.

M. Simon   ·  December 10, 2009 3:12 AM

I'm sorry that the woman's mother died, but I hope Samsung brings a countersuit and takes everything she has.

John S.   ·  December 10, 2009 8:49 AM

There are several other suits that could be possible.
1. State licensing.
2. Drivers training/trainer.
4. State/ city police for not having laws or enforcing the laws.
3. Possibly the caller on the phone.
was it a business call? Sue the business, many sales people and executives are always on the car phone.
The people who make these things can not possible be responsible for how people abuse their product.

Hugh   ·  December 10, 2009 10:50 AM

Any woman walking down the street just needs to hire Jackie Chiles.
If the bra doesn't fit, you must acquit.

plutosdad   ·  December 10, 2009 12:31 PM

"Why should scantily clad young women be allowed to get away with causing accidents?"

But of course to parallel the logic of the Samsung lawsuit one should sue not just the pretty woman but the company that manufactured her sexy clothes, the store that sold them, the trucking firm that shipped them....

pst314   ·  December 10, 2009 1:56 PM

One of the most dangerous thing I do is try to read bumper stickers. I'm bemused that no government has yet dictated minimum font sizes on them as a safety measure, or, more in keeping with the progressive mentality, banned that form of speech altogether.

Brett   ·  December 11, 2009 7:48 AM

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