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.

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.

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%

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.)