Fifth Circuit Says Apple Can't Be Held Liable For A Car Crash Caused By Someone Reading Text Messages

from the texting-while-litigating dept

Seeking to hold tech companies responsible for the actions of their customers and users is a national federal court tradition. Law firms like *checks notes* 1-800-LAW-FIRM and Excolo Law have made a cottage industry of this, scoring dismissal after dismissal of their lawsuits seeking to hold Facebook, Twitter, and YouTube responsible for the violent actions of terrorists around the world.

Seeking justice -- or at least compensation -- for wrongs committed against you and the ones you love is a natural instinct. Issues only develop when you take the fight to a third party only tenuously connected to the wrong that was committed. A lawsuit against Apple has been dismissed for the second time. The Fifth Circuit Court of Appeals is no more impressed with the arguments that failed to make an impact at the lower level.

In this case, the appellants sued Apple for a car crash caused by a driver reading text messages on her iPhone 5. Maybe the driver turned out to be judgment proof -- especially after being convicted on two counts of criminally negligent homicide. The appellants -- who lost two family members in the auto accident -- feel Apple is liable because it did not implement a lock-out process it had patented in 2008.

The appellants claim Apple recognized the texting-while-driving problem but failed to do anything about it. The Appeals Court says [PDF] a Pavlovian response to incoming texts cannot be Apple's fault, not even at the state level.

This case asks us to decide whether, under Texas law, a driver’s neurobiological response to a smartphone notification can be a cause in fact of a car crash. Because answering in the affirmative would entail an impermissible innovation or extension of state law, we answer in the negative.

The court goes on to point out that the cases cited by the appellants dealing with vicarious liability all have one thing in common: reasonable expectations.

The Texas cases on which Appellants rely make clear that acceptance of their causation theory would work a substantial innovation in Texas law. These cases present garden-variety theories of causation that ordinary minds would readily accept, so they have little to say about the present case. One is Dover Corp. v. Perez, which concerned a heater pumping carbon monoxide into an apartment due to its negligent manufacture and installation... No useful analogy exists between a smartphone’s effect on users and a heater generating carbon monoxide. Others are Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 449–50 (Tex. 2006), about a worker who fell through an opening in an oil derrick platform left unprotected, and Rio Grande Regional Hospital, Inc. v. Villareal, 329 S.W.3d 594, 603–04 (Tex. App.––Corpus Christi 2010), about a nurse who left a psychiatric patient unattended with razor blades. No worthwhile analogies suggest themselves here either. Appellants also cite a case about Ford’s decision not to install a seatbelt for the middle seat in the Ford Bronco’s rear row. Ford Motor Co. v. Cammack, 999 S.W.2d 1, 8–9 (Tex. App.––Houston [14th Dist.] 1998). An analogy may perhaps be drawn between a distracting phone and a car seat without a seatbelt, but it does not get us very far. A user of the former can make it safe for driving by silencing or switching it off; no such simple fix exists for the latter.

The court's condensed take appears at the bottom of the footnote appended to this paragraph.

None of the causes alleged in these cases strains the sensibilities of a reasonable person, nor does any resemble the cause advanced by Appellants here.

The court also notes that Texas laws governing distracted driving place the onus on the driver -- not the cellphone provider nor the vehicle manufacturer, no matter what safety features may have been bypassed or never implemented.

Under state or federal precedent, the outcome is the same: the cause of the crash was the driver, not the cellphone manufacturer.

No Texas case has addressed whether a smartphone manufacturer should be liable for a user’s torts because the neurobiological response induced by the phone is a substantial factor in her tortious acts. To our knowledge, informed by submissions to us, no court in the country has yet held that, and numerous courts have declined to do so. As such, no authority indicates to us that Texas courts, contemplating reasonable persons and ordinary minds, would recognize a person’s induced responses to her phone as a substantial factor in her tortious acts and therefore hold the phone’s manufacturer responsible.

As frustrating as it can be for those who've experienced a tragedy, the person who has wronged you is responsible for their actions -- not their cellphone provider or their social media platform of choice.

Filed Under: 5th circuit, ashley kubiak, iphone, liability, texas, texting
Companies: apple


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  • identicon
    Brad Jones, 4 Jan 2019 @ 12:38pm

    This is an interesting case. I don't understand why the Plaintiffs needed to plead that there's a "neurobiological response" with respect to text messages. It'd be a simpler theory to just say that, in a given population, Apple knows that some users will be driving and looking at text messages and Apple can manufacture their product to prevent that foreseeable harm. Essentially a traditional negligence theory with maybe a design defect theory. I would guess there's some barrier in Texas tort law that makes those claims not work, but I wish that were a bit more clear.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jan 2019 @ 12:51pm

      Re:

      "Apple can manufacture their product to prevent that foreseeable harm. Essentially a traditional negligence theory with maybe a design defect theory"


      I don't think so Tim.

      reply to this | link to this | view in chronology ]

    • icon
      Killercool (profile), 4 Jan 2019 @ 12:51pm

      Re:

      But... How is Apple supposed to manufacture a product that can differentiate between a distracted driver and a bored passenger?

      Make you super double pinkie swear that you're not driving? Have the camera on constantly to monitor you? Forbid all phone interaction in a moving car?

      Better yet, why is it Apple's problem that someone is using their device in an unsafe, and (in Texas, at least) illegal manner?

      reply to this | link to this | view in chronology ]

      • identicon
        norahc, 4 Jan 2019 @ 1:04pm

        Re: Re:

        "Better yet, why is it Apple's problem that someone is using their device in an unsafe, and (in Texas, at least) illegal manner?"

        Because Apple has the deep pockets.

        reply to this | link to this | view in chronology ]

      • identicon
        kog999, 4 Jan 2019 @ 1:40pm

        Re: Re:

        suppose for a second that apple can somehow magically tell if you are driving or not and shut off the phone if you are. Why would anyone who decides to txt and drive buy an apple phone.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Jan 2019 @ 2:46pm

          Re: Re: Re:

          Apple can already tell if you're in a moving vehicle, and by default prompts to find out if you're the driver, and if you say you are, turns off most functions.

          Anyone disabling this while driving is willfully evading DRM, and so can be sued under the DMCA by the government.

          Didn't see that one coming, did you?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Jan 2019 @ 3:09pm

            Re: Re: Re: Re:

            I fail to see how this feature you have described removes the possibility of some one texting while driving.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 4 Jan 2019 @ 3:30pm

              Re: Re: Re: Re: Re:

              It prevents them getting text notifications while driving. Which means they have no urge to respond with their own text.

              It does nothing to prevent someone from picking up their phone and sending off a text carte blanche. For that, you have common sense.

              The only possible argument I can see that Apple is at all culpable is that it is attempting to get the driver's attention while they're driving. Apple has already implemented a fix for that part. In 2008, they had patented it but not yet implemented it, as outlined in the suit.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 4 Jan 2019 @ 4:13pm

                Re: Re: Re: Re: Re: Re:

                "It does nothing to prevent someone from picking up their phone and sending off a text carte blanche"

                Exactly, and in addition it does not check to make sure you are not the driver.

                It also does not stop you from running with scissors while texting.

                reply to this | link to this | view in chronology ]

      • icon
        Vidiot (profile), 4 Jan 2019 @ 2:15pm

        Re: Re:

        Come on, now - you know why: like the mythical unbreakable encryption backdoor, anything is possible if they'll just nerd harder. Get crackin', high-paid coders.

        reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 4 Jan 2019 @ 10:54pm

        Re: Re:

        They applied for & were granted a patent on a system to protect stupid people from themselves, they never moved it much further than the application. Because it exists on paper, it must be completely possible & opens the door for us to collect 42 bajillion dollars from Apple. Waiting for the followup suits against the car makers & the company that poured the concrete for the road.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Jan 2019 @ 6:24am

          Re: Re: Re:

          Because it exists on paper, it must be completely possible

          That's the point of a patent, right? Not to throw ideas out so that you can own them after someone else does the hard work, but to tell other people how to do something useful. As dumb as this lawsuit is, I see no problem with making an assumption that a patent holder can do the thing they've patented. Otherwise, it would be a fraudulent patent.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Jan 2019 @ 7:50am

            Re: Re: Re: Re:

            "That's the point of a patent, right? Not to throw ideas out so that you can own them after someone else does the hard work, but to tell other people how to do something useful."

            In theory, yes.
            In practice, no.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jan 2019 @ 1:19pm

      Re:

      Apple knows that some users will be driving and looking at text messages and Apple can manufacture their product to prevent that foreseeable harm.

      But why would this be Apple's responsibility, as opposed to Verizon's? After all, it is Verizon (or AT&T et al.) that caused those text messages to be delivered. In point of fact, Verizon's product is inextricably connected to the delivery of text messages and other data which could be distracting to a driver, whereas Apple's products have multiple and varied uses independent of potential distractions to driving. In other words, substantially every use of Verizon cell services potentially impacts the attention of drivers, whereas substantial uses of Iphones do not include a reasonable potential to distract drivers. If we are going to assign negligence to third parties, we should assign the negligence to the correct third party.

      reply to this | link to this | view in chronology ]

      • identicon
        kog999, 4 Jan 2019 @ 1:44pm

        Re: Re:

        I charged my phone with power supplied by my local power company. without it the phone would not function and would not have received the txt message. perhaps i should sue the power company.

        oh an i paid my phone bill though my checking account at the local bank. my bank should have foreseen i was going to drive unsafely and prevented this by not paying verizon so that my service would be shut off and i wouldn't have gotten that txt.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Jan 2019 @ 8:26am

          Re: Re: Re:

          People crash their cars for any number of reasons from being distracted. maybe changing settings on a touch screen like in a Tesla. Playing with the Radio. Ir telling the kids in the back seat to stop fighting each other. Maybe it's as simple as looking down to change the radio.

          Sure Apple could do something to stop a person from using their phone, but then Apple would be SUED over that. I'm a passenger, why can't I use my phone in the car? So now Apple has a Class Action against them. If there's a way to bypass that, then a driver is going to bypass it. You make the phone harder to use in this way, and people are going to get pissed off and not buy the phone.

          Instead, you should be smart enough and have more self control with your phone and just ignore it. Pull over if you have to and take a look if need be. Have a hands free setup. In general, you shouldn't be looking at the screen anyway. It should tell you who's calling, and you answer if you want. GPS navigation, you should be going by the voice directions it's giving you, NOT looking at the screen. You should never be looking at your phone screen.

          reply to this | link to this | view in chronology ]

    • identicon
      z!, 4 Jan 2019 @ 1:33pm

      Re:

      "Apple knows that some users will be driving and looking at text messages and Apple can manufacture their product to prevent that foreseeable harm"

      They already do- all iThings have an on/off switch and many have a "silent" mode.

      Or do you imply the devices should -automatically- silence themselves (as the lawsuit suggests)? That's a whole different kettle of worms. That would also suggest that even built-in devices, such as Tesla's control panel, shouldn't be accessible to the driver while they're operating the car.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Jan 2019 @ 2:49pm

        Re: Re:

        iDevices already DO automatically silence themselves when the device is moving without a walking cadence. You have to intentionally disable this to make it different.

        Frustrating when you're a passenger in a car, and if you disable it while passengering, it stays disabled the next time you drive, but that's not on Apple.

        reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 5 Jan 2019 @ 1:21am

      Re:

      They were hoping to snow the court with "neurological response." They were pretty sure that if they called it "a bad habit," it would be thrown out. The theory being that, if you make something sound important with big words, no one will notice what BS it is.

      reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 5 Jan 2019 @ 6:41am

        Re: Re:

        Sounds like they were trying to establish in the minds of the jury a fictional world in which self-control doesn't exist, therefore the only way for someone to not check their texts while driving is for them to be blocked.

        reply to this | link to this | view in chronology ]

    • icon
      madasahatter (profile), 5 Jan 2019 @ 7:36am

      Re:

      Misuse of something by the owner is generally not the manufacturer's fault. In this case someone was misusing their phone while driving. In all US states the driver is supposed to be paying attention to driving while the vehicle is on the road; not playing guitar, reading a text, playing with the dog, etc.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jan 2019 @ 11:42am

      Re:

      Or, maybe they could pay attention to the thing that's more likely to get them killed in the next 5 seconds instead of the latest BS from social media.

      This is a case of the irresponsible and lazy demanding that others be responsible for them. It's also a case of not putting blame where it belongs because it's more expedient to blame others.

      I could just as easily claim that people listening to their dashboard mounted infotainment centers and radios were just as dangerous as the idiot glued to their phone while driving. Should we sue the car manufacturers for putting those in the cars? Should we ban those for everyone as well?

      Personally I'd like to see a more personal consequence placed on those found guilty of texting while driving: X number of years banned from all cell services on all carriers nationwide. They could careless about the driving so taking their license away won't help here. If we make them go through social media withdraw however, watch how quick they'd learn to be responsible while driving.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Jan 2019 @ 7:56am

        Re: Re:

        "Personally I'd like to see a more personal consequence placed on those found guilty of texting while driving"

        Like what?
        - 30 days in the hole
        - 50 lashes
        - X number of years banned from all cell services on all carriers nationwide

        iirc, in the US, there are provisions in place to limit the implementation of cruel and unusual punishment. The law sometimes is not applied and therefore the regulations are sidestepped. In addition, there are laws in place that address reckless driving, distracted driving, impaired driving ... and you want more? Let's use the existing laws first. Asking these bozos to write new laws is sort of like shooting yourself in the foot.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Jan 2019 @ 1:09pm

    Pretty sure there is an equal neurobiological response to phone/messaging alerts that falls along the lines of a groan, eyeroll, or "fuck that, not right now".

    reply to this | link to this | view in chronology ]

  • icon
    lars626 (profile), 4 Jan 2019 @ 1:27pm

    Sue who

    It would be more plausible to sue the car manufacturer. They made the deadly weapon she was driving, not Apple.

    reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 4 Jan 2019 @ 1:34pm

    Good News!

    Because Apple caused the death of natural persons, under common law it has not rights therefore it shouldn't be selling phones in the first place?
    Why does TF keep shilling for these corporations that don't even actually exist??

    I'm sure the obvious solution is to break up apple.

    /s

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 4 Jan 2019 @ 2:09pm

      You forgot to mention zombies, “globalists”, and Google. 6/10, best I can give you.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      I C Thruitt, 4 Jan 2019 @ 2:17pm

      Re: Good News! -- No, it's "Gary's" FAKE NEWS, only kind he has.

      Hey, there "Gary". You look like more Timothy Geigner, aka "Dark Helmet" with every comment, especially in the apparently drunken rambling, can't even get "TD" right!

      You're now pretending to be an expert on Common Law apparently to subvert use of it, but you have it wrong, of course. Common Law actually prohibits this over-reach.

      Since you zoomed from 12 comments in two years to your current rate to over 360 per year now, without explanation, you're providing enough to point up similarities to Timmy: you're both in "IT", bombastic, aggressively and repeatedly challenge, and so on. -- Mainly, you're similarly not making the site look good, so keep it up!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2019 @ 4:39am

    From the Apple suit file:

    [...]was driving her pick-up truck on April 30, 2013 when she received a text message on her iPhone 5. Appellants allege that Kubiak looked down to read the text, after which she turned her attention back to the road. At that point it was too late to avoid colliding with a vehicle carrying two adults and a child. The adults died, while the child survived but was rendered paraplegic.

    Own your mistakes! Especially those where you royally screw up and end up killing innocent people!

    Accept the blame when you deserve it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jan 2019 @ 4:53am

    "Seeking to hold tech companies responsible for the actions of their customers and users is a national federal court tradition."

    Seeking to hold any company responsible for the actions of its customers is a national tradition. We're a society of blamers, everyone but the real culprit, ourselves.

    Got fat eating fast food? Blame McDonald's.
    Got lung cancer from smoking? Blame tobacco companies.
    Got kidney failure and rotten teeth from drinking soft drinks? Blame the drink makers.
    Running over innocent pedestrians while drunk? Blame booze makers.
    Someone shoots up a nightclub? Blame the gun manufacturer.

    Almost a guarantee responses are going to explain away why all those companies are guilty as sin. You're just making my point for me. Guess what? You're part of the problem! Teaching our kids it's always someone else's fault does neither them nor our society any damned good!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jan 2019 @ 6:27am

      Re:

      Yes and no, as usual.

      fast food, tobacco, soft drinks, alcohol were not forth coming with information about the use of their products, which they were aware of for some time - this is apparently not illegal but it does rub some people the wrong way. Lies told to potential customers is potentially illegal but as we have seen in the past charges will probably not be files, ever wonder why?

      Guess what? You are part of the problem.

      I did not teach my children that "it's always someone else's fault", politicians did that.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2019 @ 3:37am

    Also even if your phone is dash mounted, you should not have a password to unlock your phone. That password should be removed.

    This is in case the phone goes to sleep. Entering the access can be dangerous, even if the phone is mounted, as I narrowly avoided an accident once.

    In Android, the phone in Developer mode, and then set it where the phone will not to sleep, as long it is plugged into a charger.

    iPhones do not have that feature, so if you drive a lot, trash iPhone for an Android, so you can set it to where it never goes to sleep. You can also use an app called No Screen Off, that will prevent the phone from ever going to sleep.

    Android rules, iphones suck

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jan 2019 @ 8:35am

      Re:

      What a load of crap! Leave your password ON! Password should NOT be removed. If your iPhone is in a mount, great. Phone will not shutoff with certain apps like GPS navigation. So if you have Apple Maps, or WAZE, or Google Maps, it doesn't turn off. If you're playing music and it's on the music screen it will, but the music is still playing and can still be remotely controlled.

      With touchID or FaceID, it's simple and quick to unlock and open the phone in a couple seconds at most. Generally, you shouldn't even be looking at the screen in the first place while driving so off is a good thing.

      As for Android, that Spy infested junk is just that. Complete crap!!!

      reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 6 Jan 2019 @ 10:26pm

    Lock Out

    The most common motor vehicles have 1 to five extra seats in them to accommodate passengers.

    I was in a car last night with lots of features that do not work while the vehicle is moving.

    I guess it's a safety feature but it actually isn't when you block passengers. I had to use google on my phone as the navigation system since the car wouldn't allow it.

    reply to this | link to this | view in chronology ]


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