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Actually, It Can’t Wait – Limiting Cellular Device Use While Driving

posted on Fri, Jun 7 2013 11:36 am by Kellie Nelson and James Hodge, Jr.

No text message, email, website or video is worth the risk of endangering my life or the lives of others on the road. I pledge to never text and drive and will take action to educate others about the dangers of texting while driving. No text is worth the risk. It can wait.

This plain, no-nonsense language is at the heart of a new campaign sponsored by four giants in the cellular business, AT&T, Verizon Wireless, Sprint and T-Mobile.  The campaign attempts to educate consumers on the dangers of using cellular devices while driving, and asks them to voluntarily pledge to put down their devices while driving in the absence of true emergency circumstances. However, in the interest of public safety, can we wait for mere voluntary efforts to encourage consumers to use their devices responsibly?

Up to 24 percent of car accidents (an estimated 1.3 million in 2010) involved the use of cellular devices by the driver. Studies show the risk of being in an accident while using a cellular device approximates the risks for drunk drivers.  Even hands-free devices designed to allow people to keep both hands on the wheel slow driver reaction times and lend to more accidents.

Drinking alcohol or using illicit drugs while driving are prohibited because of clear public safety implications. Why should drivers be allowed to use cellular devices if they pose similar risks? Many state and local law and policy-makers suggest they should not. All but five states have laws that ban texting while driving, and 15 states prohibit the use of hand-held phones. Similar to the industry “pledge,” these laws rely on voluntary change in consumer behavior and see only minimal enforcement.

Existing technology allows cellular companies and manufacturers to shut down a device’s operation at high speeds through global positioning and downloadable applications. Some of the apps silence notifications or send automatic replies to those who text or call that notify them the driver is on the road, and provides some flexibility for drivers to make and receive calls with up to five numbers or to dial 911.

At present, these apps are voluntarily downloaded by consumers. Some insurance companies offer discount safe drivers’ premiums for agreeing to use these technologies. In the future, consumer options may be curtailed. Cellular device manufacturers and service providers may face impending legal claims that their products or services contributed to the injuries or deaths of their consumers (and others) who fall victim to vehicular accidents. 

In Estate of Barclay Doyle v. Sprint/Nextel Corp. (Okla. Civ. App. 2011) and Williams v. Cingular Wireless (Ind. Ct. App. 2004), for example, plaintiffs claimed the companies were negligent for allowing customers to use their devices in a way that contributed to accidents. In both cases, the courts held that cellular service providers did not owe a duty to protect accident victims. In Williams, the court noted that public policy weighed against imposing liability on the companies because they would have to stop selling cell phones to avoid customers from using them while driving.

Public policy can shift in response to new technologies that can prevent vehicular risks to drivers, passengers and pedestrians. In Geier v. American Honda Motor Co. (U.S. 2000), it was argued that Honda’s failure to include readily-available air bags in their vehicles rendered it liable for injuries sustained by the driver in a single car accident. Although the Supreme Court dismissed the claim on grounds of federal preemption, every car sold in the U.S. now has air bags thanks in part to a change in federal motor vehicle safety standards.

The future could bring massive tort litigation or regulatory reforms for cellular device manufacturers and service providers if they fail to consider available technology to thwart drivers’ texting or talking on devices to the detriment of others’ or their own safety.  When it comes to saving individuals from injuries or deaths from preventable accidents through available technology, no, it can’t wait.

This blog post was developed by Kellie Nelson, J.D. Candidate (2015) and legal researcher, and James G. Hodge, Jr., J.D., LL.M., Director, Network for Public Health Law – Western Region, at the Sandra Day O’Connor College of Law, Arizona State University.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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