A Victim’s Daughter Takes the Cellphone Industry to Court

By MATT RICHTEL
Published: December 6, 2009

Questions about how much the wireless industry knew about the risks of distracted driving are not academic — at least not to Jennifer Smith.
Ms. Smith’s mother was killed last year when her car was hit by a driver talking on his cellphone. Ms. Smith, 35, has sued the companies that provided the driver’s phone and wireless service.
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.
In 2003, a woman in Indiana sued Cingular after getting into an accident with another driver, who was reportedly using a Cingular phone. An Indiana appellate court, affirming a lower court’s decision, dismissed the suit, for reasons that include the unforeseeability of the accident and the absence of a legal relationship between the woman and Cingular. But the court also said that crashes are caused by driver inattention, not by cellphones, adding that drivers often talk on phones without crashing.
Russell Jackson, a lawyer who defends companies in product liability cases and is chairman of the Product Liability Committee of the New York City Bar Association, said Ms. Smith, in her lawsuit, faces a challenge in that consumers generally know it is risky to talk on a phone but do it anyway. As a result, he said, it is fair to assume that drivers like Mr. Hill would have kept talking, even if there had been more warnings.
In fact, Mr. Hill, who pleaded guilty to negligent homicide, a misdemeanor, does not blame the cellphone companies. “It’s our choice if we’re going to talk on the cellphone while driving or walking down the street or in the office,” he said. “The cellphone companies don’t say you should talk on the phone and drive.”
At the same time, Mr. Hill said, he was not aware of the education efforts by wireless companies on distracted driving, like the warnings in his phone manual to focus on the road.
“I never read it,” he said.
Ms. Smith argues that the industry’s success in marketing to drivers is the reason people like Mr. Hill do not change their behavior or pay attention to what she characterizes as faint warnings by the industry.
Of her mother’s death, she said: “They should’ve told people from the beginning there was a real risk, and this would’ve never happened.”