Finally, someone is doing something about it.

We’ve all seen the telltale signs. We look at the driver in the next lane and see one hand on the wheel, head down and making furtive occasional glances up and then back down.

At night, it’s even easier to spot, as the glow of the cell phone lights the driver’s face.

To those of us who appreciate and take pride in the skill required to properly drive cars capable of high performance, nothing is worse than some idiot texting while driving. Not only are they committing dangerous and sacrilegious disrespect for the skill of driving, but these idiots actually think they can do this multi-tasking safely.

Haven’t we all said, “Someone should do something about this before people get killed”?

Although it is too late to keep people from getting killed, someone really is trying to do something about this. Jonathan Michaels, founder of the Newport Beach, CA, boutique law firm MLG Automotive Law, has recently filed a class action lawsuit against Apple, seeking to enjoin it from selling any more iPhones until it installs texting and driving safeguards in its cell phones.

Why pick on Apple? Michaels explains that Apple has had the technology to prevent driving and texting since 2008 — and even received a patent on the technology in 2014. Nonetheless, it refuses to install the technology in its iPhones out of a fear of losing market share.

Statistics detail the danger

The lawsuit, Julio Ceja v. Apple Inc., cites a number of sobering statistics:

  • Data from the U.S. Department of Transportation show that at any given moment, 1.5 million people are texting and driving on public roads.
  • The National Highway Traffic Safety Administration classifies texting and driving as six times more dangerous than drinking and driving.
  • In a recent NHTSA study, it was concluded that drivers take their eyes off the road for an average of 4.6 seconds when sending or receiving a text. At 80 miles per hour, that is the equivalent of driving 539 feet — or nearly two football fields — blindfolded.
  • The National Safety Council’s 2014 injury and fatality report found that cell phone usage causes 26% of all car accidents in United States.
  • Based on data provided by the Federal Highway Administration and the California Highway Patrol, Apple’s iPhones are responsible for 52,000 automobile accidents in California each year, and an average of 312 deaths.

Innocent victims

The complaint alleges that Ceja was stopped at a red light when a young woman who was texting and driving rear-ended him.

Ceja saw the whole thing unfold in his rearview mirror and was powerless to do anything to protect himself other than brace for the collision. As he looked in his rearview mirror, he saw that the driver behind him was looking to the right, engaged in using her cell phone instead of paying attention to the road in front of her.

When the errant driver got out of her car, she still had her iPhone in hand, startled that she had just caused an accident. Ceja’s car was totaled and he suffered back injuries.

Who should be responsible?

Is it fair to target the manufacturer here? Michaels states, “I get it — people should be responsible for their personal actions. But our relationship with our cell phones is something else.”

The complaint alleges:

Society’s relationship with the smartphone has far exceeded convenient connectivity. Users are increasingly developing a genuine compulsion for their smartphones. They’re texting, Facebooking and gaming at every idle opportunity. To illustrate the point, in 2014 AT&T commissioned research by an addiction expert who found that a physical reaction in our bodies causes us to compulsively check our phones — even while driving.

Dr. David Greenfield, founder of The Center for Internet and Technology Addiction and Assistant Clinical Professor of Psychiatry at the University of Connecticut School of Medicine, opines that
“[w]e compulsively check our phones because every time we get an update through text, email or social media, we experience an elevation of dopamine, which is a neurochemical in the brain that makes us feel happy. If that desire for a dopamine fix leads us to check our phones while we’re driving, a simple text can turn deadly.”

Not only do our bodies physically react when we receive a text or other message on our phones, but our rational ability to avoid the danger is biologically impaired. The University of Kansas recently conducted a study on the subject, which found that drivers have great difficulty resisting the cell phone temptation because the prefrontal cortex, the part of the brain responsible for decision making, is fully engaged by the task of driving.

In support of its patent application, Apple recognized the dangers of texting and driving — and the important role they themselves should play in stopping it.

Apple argued, “New laws are being written to make texting illegal while driving. However, law enforcement officials report that their ability to catch offenders is limited because the texting device can be used out of sight (e.g., on the driver’s lap), thus making texting while driving even more dangerous. Texting while driving has become so widespread it is doubtful that law enforcement will have any significant effect on stopping the practice.”

The wheels of justice turn slowly

So how can this be expected to play out in court? The complaint was filed in mid-January. As of this writing, Apple has not yet responded, but “Legal Files” would expect it to respond by filing a motion to dismiss the complaint on the basis that there is no legal basis for it to be found liable here.

This is an unusual case in that Ceja is not seeking money damages. His ask is for an injunction that stops the sale of iPhones until the lockout technology is installed in them. Apple may well argue that it is legally free to build its iPhone any way it wants, that it has no legal responsibility for what users do while using their cell phones — and that the type of injunction requested is an inappropriate remedy.

Whoever loses that argument will almost certainly appeal, and appeal further until the case gets to the California Supreme Court. The court docket is extremely clogged in California, so a final decision on whether the lawsuit can be pursued is years away.

If Michaels prevails, then the case would go to trial — again, a multi-year scenario. And, when a judgment is reached, that will start another round of appeals.

So however one looks at this, it’s going to be a very long road to the end. Of course, an early win for Michaels — recognition of the legal sufficiency of the claim — would yield tremendous publicity and an opportunity for negotiation.

Someone has to do something

No doubt, this is a labor of love. Michaels recognizes that, stating, “My main goal is to get the practice to stop.”

He says his small law firm is no stranger to big cases, having prosecuted several high-profile class-action cases, including one that was combined with others and resulted in the $10 billion settlement with Volkswagen involving the falsification of diesel emissions data. His firm was also involved in the General Motors ignition-switch class action.

Michaels is also counsel on a suit in which several terminated Chrysler dealers are suing the U.S. government for wrongfully taking their dealerships in 2009, and he also represents Henrik Fisker in his claim against Aston Martin.

We will be watching for developments in this case. Win or lose, Michaels is drawing attention to the dangers of texting and driving. He may help start a national discussion about how to stop the practice.

Finally, someone is doing something. ♦

JOHN DRANEAS is an attorney in Oregon. His comments are general in nature and are not intended to substitute for consultation with an attorney. He can be reached through www.draneaslaw.com.

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