The issue of "distracted drivers" (and distracted pilots)continues to make news. Recently, an Oklahoma woman sued the wireless cellphone provider of a driver who killed her mother while talking on a cellphone.
This is a novel lawsuit. The claim? That the cellphone industry failed to provide appropriate warnings to users in light of the fact that it was foreseeable that users would talk while driving.
Negligent "failure to warn" cases can be legitimate when the product hazard is not obvious. For example, if a children's go kart can burst into flames if it is tipped on its side, a manufacturer should have a duty to place a conspicuous warning on the product and in the manual (an actual case we litigated a few years ago).
But the problem with the "cellphone lawsuit" is that, unlike the latent risk of something like a fire, it is common knowledge that it can be dangerous to talk or text while driving. The issue will therefore be: would an appropriate warning have prevented the driver from talking on his phone? Probably not.
Look for this case to be dismissed. And win or lose, I'll bet that cellphone providers will change their ways and start to include some specific warnings on the dangers of talking or texting while driving, which is probably not a bad thing anyway.