Snapchat Ends 'Speed Filter' That Critics Say Encouraged Reckless Driving

 Last month I reported that the 9th U.S. Circuit Court of Appeals had issued an opinion holding that the parents of a teenager killed in a traffic accident could sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

Today I am writing about this because NPR is reporting that Snapchat is eliminating a feature known as the "speed filter" that lets users capture how fast they are moving and share it with friends. 

You can read the story on NPR here.

Court of Appeals for the 9th Circuit recognizes cause of action against Snapchat

A three-judge panel of the 9th U.S. Circuit Court of Appeals recently decided that the parents of a teenager killed in a traffic accident can sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

The decedent and two other teenagers were driving at over 120 miles an hour and wanted to capture the experience using an app feature called "speed filter" which documents real-life speed.  After one of them opened and started using the app, the driver lost control of the car and hit a tree.  All three died in the crash.

This type of allegation is not new.  It was the same type of allegation used in cases involving people playing "Pokemon Go" (remember that craze?). I posted a podcast on those claims back in 2016 here.

Other cases have found against the sender of a text which distracts a driver.  For example, see here, and here.

So, the plaintiffs' argument that the app "entices" young people to do stupid or dangerous things is not new; but it is not an easy one.  First of all, there is the issue of whether the conduct of one of the kids should be considered a superseding intervening cause.  Was the goal of the joy ride to use the app?  Or did they decide to use it after they were already driving fast?

Also, and even more problematic for the plaintiffs is the issue of comparative negligence, or assumption of the risk (if the jurisdiction still recognizes it as a defense).  If the jurisdiction is a modified comparative negligence jurisdiction, the defendants will argue that the plaintiffs' negligence should defeat the cause of action. 

What is most interesting about this case is that the plaintiffs argued the case as a products liability case while the defendant tried to defend the case by arguing it is protected from liability by the Communications Decency Act.

According to Courthouse News, the Ninth Circuit’s rejection of the defendant's attempt to hide behind the Communications Decency Act is the second opinion by an appellate court.  The other one was the Georgia Court of Appeals which rejected virtually identical arguments made by Snap in another Speed Filter case.  NPR has more on the case here.

The case is called Lemmon v. Snap, Inc, and you can read the opinion here.

More thoughts on possible liability for the consequences of the conduct of app users: Is Uber dangerous?

Over at the New York Personal Injury Lawyer Blog, Eric Turkewitz has posted a very interesting short comment called Uber Cars are Uber Dangerous.  You should read the full comment but the bottom line is that it is possible to argue that the way Uber works, it encourages its drivers to check and reply to text messages while driving.  If this is the case, it can then be argued that Uber is acting in a way that creates unreasonable risks of harm to others, and therefore, that it should be liable for injuries that result.  This would be particularly important in jurisdictions that have adopted the view that someone who sends a text may be liable if he or she knows that the recipient is driving at the time and is likely to be distracted by the text.  There are reported cases on this in at least two states.

It should also be noted that this theory of liability is not dependent on finding that Uber drivers are employees as it would be if the argument is based on vicarious liability (an issue that is currently being litigated in several cases in different jurisdictions).

Charlie Sheen’s Ex-Fiancée Sues Over Sheen’s Failure to Disclose HIV Status; does she have a case?

Charlie Sheen’s ex-fiancée sues over Sheen’s failure to disclose HIV status.  Does she have a case?  Two articles discuss the issues here and here.

Tony Stewart Sued For Wrongful Death By Family Of Kevin Ward, Jr.

You may remember a race car accident last year in which a driver got out of his car and started walking on the racetrack yelling at the driver that hit him. That driver, Tony Stewart, then hit the first driver, Kevin Ward, who later died from his injuries. ESPN is now reporting that Kevin Ward's family has filed a wrongful death lawsuit against Tony Stewart.

It will be interesting to see how the court addresses the claim because it raises several issues.  First of all, drivers who engage in race car driving assume the inherent risks of the sport, one of which is death.  However, the plaintiffs will argue that the plaintiff does not assume the risk of having a car driven into him the way Stewart did in this instance.  In reply, Stewart will probably argue that Ward was contributorily negligent in walking on the race track as the race was ongoing.  Depending on the rule in the jurisdiction, this argument may be enough to win the case for the defendant.

According to the lawsuit, Stewart gunned the throttle of his car to kick the tail end out as he drove by Ward, unlike the other cars that had passed through that section.  “Stewart could have easily acted reasonably and with prudence to avoid striking Ward, just as all other drivers had done as they passed Ward during the yellow caution flag,” reads the lawsuit. “Stewart acted with disregard for Ward’s life and safety by driving his vehicle in a manner that would terrorize Ward ...”  In other words, the plaintiffs seem to be arguing that Stewart purposely tried to scare Ward.  If that is the case, I wonder if they also included a count for battery in the complaint.

Here is a video of the accident itself:

Video Quiz: who is negligent and what percentage of fault would you assign?

If you can't see the video below, go here. If an ad appears on the screen, click on top right hand x to delete it.

 

$1.7 Million dollar verdict set aside because of contributory negligence

Back in August, I criticized the decision in Maryland to retain the archaic and unfair notion of contributory negligence (see here and here).  Now comes news that the doctrine has been used to set aside a $1.7 million verdict. 

Following three weeks of trial and two days of deliberations, in the second trial out of more than 3,000 Actos lawsuits pending nationwide, a Maryland jury found that Takeda Pharmaceutical’s failed to adequately warn physicians about the risk of bladder cancer from their popular diabetes drug and awarded nearly $1.77 million in damages. However, the court entered a verdict for the defendant because the jury also found that the plaintiff failed to exercise reasonable care for his own health.

Go here for the full story.

Police officer sues woman who called 911 alleging she had a duty to warn the cop would be facing a dangerous situation

Here is a story about the most ridiculous lawsuit of the year so far, although not as ridiculous as the case filed a couple of years ago alleging damages caused by bad mothering (see here).

In this new case, a police officer in Texas was injured when he responded to a 911 call.  He then filed a lawsuit against the caller claiming she failed to adequately warn the 911 operator of the dangerous situation the cop was walking into.  Read the story here.

In the newspaper account, the defendant's lawyer calls the lawsuit frivolous.  I agree.  The generally accepted rule for cases like these is that those who take on the responsibilities of jobs that require putting oneself in danger when called to action assume the risk inherent to the job.  Typically, this is referred to as the "fireman's rule" because it was originally developed to explain why firefighters should not be allowed to sue those who negligently caused fires.

The same policy reasons apply to police officers.  First of all, there is the notion of assumption of the risk.  People who opt to work in dangerous jobs know or should know of the risks involved and assume those risks.  Second, the fact that the job carries risks is reflected in the compensation the officers and firefighters receive for taking those risks.  (If they are underpaid, that is another problem, but not one that ought to be solved by spreading the costs of the accident to the victim who has to call 911 for help).  Third, if the people who need help can be sued, there is going to be a disincentive for them to ask for help, thus defeating the purpose of creating a 911 service to begin with. 

The one argument that can be made in support of a claim like the one used in this case is that assumption of the risk is an outdated doctrine that should be abandoned in favor of comparative negligence.  I have no problem with that argument, but even if we take that position, the case here is frivolous.  In order to support the claim, the plaintiff has to support the argument that the defendant was negligent and arguing that the victim of a crime or someone who calls 911 is negligent for not warning the police that the situation is dangerous is absurd.  Reasonable people would not disagree on this.  The case should be dismissed immediately.

Article on Maryland's decision to retain contributory negligence

A couple of weeks ago I criticized the recent decision of the Court of Appeals of Maryland in which it decided to retain the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence.  I asserted that the majority opinion is weak and unconvincing and that it takes the wrong position on the policy in question.  You can read my post (and get a link to the opinion) here.

Professor Edward Robertson has now published a short but very good article in which he expands on many of the points I made.  I highly recommend the article which is available here.  In it, Prof.  Robertson shows that the court abdicated its judicial duty, and, as I asserted in my original post, the basis for the opinion is weak and unconvincing.  As he explains better than I did, there is simply no legislative or public policy declared by the legislature to which the court has any reason to defer.  He also explains that the opinion creates a perverse incentive for special interests lobbyists and that, again as I suggested, the court ignores the reality of the legislative process which is operates on the basis of an "asymmetrical balance of lobbying interests."

The article makes a number of other great points.  You should read it.  But let me mention just one more.

The court admits that courts are justified in changing the common law when the conditions that resulted in the policy in question have changed.  So, how is it that conditions have not changed in the state of Maryland to the point where a change in the common law is justified?  Forty six other states have decided the change has been justified for a long time.  What makes Maryland different?


Thanks to the TortsProf blog for the link to the article.

Maryland decides to remain in the dark ages; retains contributory negligence

The Maryland Supreme Court has issued an opinion showing its lack of vision about tort law in the twenty first century.  Or the twentieth.  Maryland is one of only five jurisdictions that still adhere to the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence.  Other than those handful of jurisdictions, every single other jurisdiction in the US has abandoned it in favor of some version of the much better approach based on comparative negligence.

Yet, in a case that gave the court the chance to make the change and join the modern world, the Court decided to keep its 19th century approach to torts.  Even though the court admitted that the court had the authority to change the principle because contributory negligence is a court created principle, it decided not to do it because the legislature had not done it.  Yes; that's it.  There is no other reasoning behind the decision.  The opinion comes down to the conclusion that "The General Assembly’s repeated failure to pass legislation abrogating the defense of contributory negligence is very strong evidence that the legislative policy in Maryland is to retain the principle of contributory negligence."

In other words, the court decided not to exercise the authority it admitted it had because the Legislature has been unable to get its act together to do the right thing.  Given what we all know about legislative work, this view is shortsighted, to say the least.  

The case is called Coleman v. Soccer Association of Columbia.  The opinion is weak and unconvincing and, bottom line, takes the wrong position on the policy in question. Much better reading is the dissenting opinion by Judge Harrell:

Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

As you would expect, the backward thinking right wing/pro defendant thinktanks like the American Tort Reform Association are happy with the decision of the court (here).

On the dangers of texting and ______...

We all know (or should) about the dangers of texting and driving.  But, quite frankly, at this point we should be talking about the dangers of texting, period.  The other day, I saw a woman literally walk into a lamp post because she was not paying attention while texting and walking.  And now, to quote the folks at Lowering the Bar, from the world of terrible ideas comes the ski goggles that let you see texts and emails on the goggles while you are skiing.  'Cause nothing says "fun" like skiing down a mountain at high speeds around other skiers - let alone trees - while reading your mail...  Lowering the Bar has more (it is worth it).

The goggles let you read emails on the slopes, as well as listen to music and make phone calls.  For more information on the product go here.

Okay maybe not quite -- the second one is from Lowering the Bar -- but you get the idea.

Now, I know what you are going to say...  This is for people to use while taking a break, while at the lodge sipping hot chocolate, etc.  Noone would be dumb enough to read emails while skiing.   Yeah, that's the same thing they said about driving.... but now we know better, don't we?:

New report on ATV injuries and children

A new report on injuries suffered by children riding all-terrain vehicles (ATVs) indicates that manufacturer warnings and parental supervision are doing little to keep underage drivers off ATVs resulting in a disproportionate number of severe injuries among children from ATV accidents.  The American Academy of Pediatrics issued a statement last week, warning that labels placed on ATVs that indicate they are only to be used by those older than 16 are ineffective. The academy also indicated that dealer-sponsored training is infrequent and generally ignored by young drivers.  Drivers ages 16 and under make up 40% of all ATV accident injuries, AAP noted. However, less than 35% of those young people involved in such accidents were wearing helmets at the time. AboutLawsuits.com has more information and links here.

ATRA urges Maryland Supreme Court not to abandon contributory negligence

Believe it or not there are just a handful (four or five) jurisdictions in the United States that still recognize the anachronistic and inherently unfair doctrine of contributory negligence as a defense, which allows a defendant - regardless of the level of negligence - to escape liability if the plaintiff can be said to have contributed in any way to his or her own injury.  Maryland is one of the few states that cling to that old, nearly universally rejected rule.

Tennessee was the most recent state to abandon contributory negligence and it is now under attack in Maryland.  However, joined by groups representing a variety of employers, physicians, and their insurers, the American Tort Reform Association has submitted a brief  to Maryland’s supreme court urging it to uphold doctrine of contributory negligence. A copy of the brief is available here.

Because of the evident unfairness of the doctrine, almost all jurisdictions have abandoned it and replaced it with some form of comparative negligence.  In all fairness, some of the forms of comparative negligence adopted (the so-called "modified" systems) merely change the threshold point at which the contributory negligence doctrine would apply, but they are still better than the old rule.  So, it is not surprising that this coalition of insurers, physicians and tort reformers want to make sure the law of the state continues to firmly reflect 19th century values. Why?  Again, because it allows them to escape liability.