WASHINGTON, March 23, 2014 – Texting while driving causes approximately twenty-five percent of all automobile collisions. Cell telephone manufacturers have the technology to prevent all of them. The technology can block composing a text or reading a text longer than about four words when the phone is moving while in view of a driver without limiting use of phones by passengers. Apps can do the same thing, but these rely upon the user to voluntarily install them and refrain from overriding them.

Cellular telephone manufacturers should be required by law to build into all phones features that limit or disable the driver’s phone when the vehicle is in motion. Variations in the limitations or disabling features, such as the “triggering” speed of the vehicle, usage when making “hands-free,” “docked” calls, or emergency 9-1-1 calls, and allowances for a passenger to use a phone can be designed in.  Existing app technologies now have all of these; they can easily be programmed into any mobile telephone’s chemistry. Technology also exists to prevent users from disabling these features.

Unfortunately, the manufacturers have no incentive to install such technology. There would be a cost, and probable opposition to passing that cost on to consumers. If we are all to be protected from the dangers that attach to texting while driving, the manufacturers must be forced to make the required changes. By example, laws were passed forcing the railroads to install safety gates when their new technology resulted in accidents where the train-tracks crossed the roads.

Federal legislation addressing this issue is highly unlikely because of the lobbying power of the phone companies and the states’ rights concept. The lobbyists would argue that the federal government has no place directing commerce by forcing vendors’ products to comply with laws their state may or may not agree with.

State legislation would probably not provide an answer because it would require simultaneous legislation across all states. If one or a few states did not impose these requirements, the scheme would fail, as it would allow purchasing a phone in a non-required state that could then be used anywhere.

The solution may just be economic incentives as dictated in our nation’s courts. Safety concerns are a priority for the courts. Judges routinely order the installation of devices that prevent starting a car when the driver’s breath carries alcohol.

If phone manufacturers were found to be responsible in courtrooms for texting while driving injuries and fatalities, over and over again, we might soon see changes in the phones.

“Tort” law governs the resolution of civil wrongs. Three “checklist” items must be found in order to hold a wrongdoer responsible.

  1. A duty or an obligation must exist to keep others safe or to prevent harm. A Texas man has no duty to oversee that a dog he does not own in Florida is kept chained up in order to prevent the dog from biting someone.  Conversely, the Florida dog owner has that duty if the dog is vicious.
  2. There must be a breach of the duty. To hold the dog owner accountable, the victim must show that the owner failed to keep the dog chained up.
  3. There must be proof that the breach of the duty caused the injury. The dog bite victim must be able to show that because the dog owner let his dog run loose, he was bitten and injured.

Whether tort law can impose liability on phone manufacturers will be tested if and when a victim of a texting while driving accident sues a cell phone manufacturer.

The pivotal question here involves duty. Does a cell phone manufacturer have a duty to the public to keep them safe? Before an auto accident victim can hold a cell phone manufacturer responsible, this question must be answered “yes.”

A 1932 New York case (that many first year law school students study) might shed light on this current issue.

Here is a summary of the case:

The T.J. Hooper v. The Northern No. 30 and No. 17, 60 F2d 737 (2d Cir. 1932).

Facts: The plaintiffs were shipping two barges full of cargo when the ships encountered a storm. The barges sank and the cargo was lost. The defendants owned the two tugboats that accompanied the barges.

The plaintiffs sued the defendants, claiming that the tugs were not seaworthy because they were not equipped with effective radio sets capable of receiving warning of the storm. At the time, a statute had been enacted that required passenger steamers to carry such radios.

The defendants asserted that they did not have a duty, by statute or otherwise, to carry radio sets. They asserted that the radio sets were new technology and that the statute that required passenger steamers to carry radios did not include tugs. The trial court entered judgment of liability in favor of the plaintiffs and the defendants appealed.

Issue: If a new technology has been shown to be a cost-effective solution to preventing accidents and saving lives and property, but not required by statute, is a party not using the technology liable for damage that the new technology could have prevented?

Holding and Rule: Yes. The court held that the standard of seaworthiness is not dependent on statutory enactment or unchanging standards. The standard changes with advancing knowledge, experience, and the changed appliances of navigation. The use of the radio was shown to be so extensive as to amount almost to a universal practice in the navigation of coast-wise tugs along the coast. The court held that there was a duty on the part of the tug owner to supply effective receiving sets.

The principle of the TJ Hooper case should be applied by the courts to hold cell phone manufacturers liable for injuries caused by texting while driving.

Before any court case is filed or decided, a small step you can take now to prevent an accident is to put your cell phone down and leave it down when you get behind the wheel.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.

His new book “Who Will Pay My Auto Accident Bills?, The Most Comprehensive Nationwide Auto Accident Resolution Book, Ever” can be reviewed on https://www.completeaccidentbook.com and can be ordered there, or obtained directly on Amazon: Click here to order

Mr. Samakow’s “Don’t Text and Drive” campaign, El Textarudo, has become nationally recognized. Please visit the website https://www.textarudo.com and “like” the concept on the Facebook page https://www.facebook.com/textarudo.

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