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More devices equal more legal risk

Experts and industry officials agree that companies must demonstrate they have taken precautions against unsafe use of what they sell

A lot going on

  • Driver distraction is a contributing factor in 20 percent to 30 percent of all crashes

  • 75 percent of drivers have used cell phones while driving

  • 500,000 drivers talk on hand-held cell phones during any given daytime moment throughout the week

    Source: National Safety Council

    State roundup

    A look at cell phone legislation in the United States this year

  • New York prohibits drivers from using hand-held cell phones while driving, except in emergency situations.

  • Massachusetts prevents school bus drivers from using cell phones while operating buses.

  • Louisiana, New Jersey and Virginia are studying risks associated with cell phones and driving.

  • New Jersey prohibits a driver with a learner's permit from using a cell phone.

  • Illinois revised headset restrictions to allow for one-sided headsets with cell phones.

  • Oklahoma and Oregon prevent local jurisdictions from enacting cell phone ordinances.

    Source: National Conference of State Legislatures

  • Joyce White has a warning for automakers and suppliers of telematics equipment: Think twice before joining the rush to fill instrument panels with navigation systems, Internet access and other devices that could distract drivers and cause crashes.

    "People will sue the manufacturers of the automobiles and the devices," she predicts. "Do not wait for a landslide lawsuit."

    White, 46, is not an expert in technology or law. But she understands the consequences of distracted driving. Her 21-year-old daughter, Angela, was killed four years ago when the car in which she was riding collided with a police car. The officer had been talking on a cell phone.

    The brain can only handle so many tasks at one time, says White, a nurse in Jacksonville, Fla., and a campaigner against driver distractions.

    Though White's opinion about potential legal liability is based on personal sentiment and not legal research, she is not alone.

    The engineering triad

    Legal experts point out that judgments can be rendered not only against dangerously defective products but also against products that function exactly as intended - if their use results in the maiming or killing of people. These experts and industry officials tend to agree that companies at least need to demonstrate they have taken precautions against unsafe use of what they sell.

    Todd Tracy is a 37-year-old Dallas lawyer who specializes in suing auto companies. He says automakers that fill vehicles with electronic distractions will have a difficult time defending themselves when lawyers in court start asking about "the engineering triad."

    The questions are: What did you do to prevent the hazard? What did you do to minimize the hazard? What did you do to warn against the hazard?

    With telematics, Tracy says, the only way to eliminate the danger would be to not install the equipment in the first place. The best way to minimize risk would be to disable equipment when vehicles are in operation, but that would offend customers who buy the devices so they can use them while driving.

    As for the third line of defense, safety warnings generally aren't effective, he says.

    The industry is addressing the second question, at least in part, by developing voice-activated equipment.

    Bill Kemp, executive director of safety communications for General Motors, says his company does not expect an explosion of litigation concerning telematics.

    If anything, he says, devices such as GM's OnStar are designed for safer use while driving than those that motorists carry into their vehicles, such as hand-held personal digital assistants.

    But Kemp said he wouldn't be surprised if lawyers try to make cases out of telematics use. "These are people in the business of trying to create liability for other folks," he says. "It's in their economic interests."

    Hamburger hazard

    Andrew Popper, a professor of automotive law at American University, isn't sure the legal principles are so clear cut.

    If more crashes occur as telematics spreads to vehicles, the issues that courts will have to work out are these: Were there foreseeable losses caused by the electronic equipment or does blame rest entirely on the decisions made by motorists?

    "Is my hamburger liable?" Popper asks. "It can be just as distracting."

    Still, automakers and suppliers could be at greater risk in court if they put distracting devices in places where drivers can't help but see them, arguably making them a design defect, Popper says.

    Or companies could be liable if they introduce devices that violate safety rules or standards established by a governing authority, such as the National Highway Traffic Safety Administration ().

    NHTSA is studying driver distraction, but Administrator Dr. Jeffrey Runge has said he is not inclined to use regulatory power to limit electronic equipment in vehicles.

    Voluntary guidelines

    In mid-2000, the Alliance of Automobile Manufacturers () moved to thwart a push for regulation by offering to create voluntary guidelines for in-vehicle information and communications systems.

    So far, the industry has drafted a set of principles, which say in general that devices should not be installed or operated in ways that interfere with driving. A group with representatives from government, industry and insurers has been established to develop the guidelines in more detail.

    The draft maintains that "the responsibilities of the driver related to safe behavior while driving and interacting with these systems remain unchanged."

    Yet there are signs elsewhere of growing liability concerns.

    An increasing number of companies are instructing employees to refrain from using cell phones while driving on the job.

    And Hertz Corp. () has altered its NeverLost navigation system - made by Magellan Corp. () - to discourage drivers from programming in addresses while vehicles are moving.

    The lock-out function was added to protect customers, says Paula Stifter, Hertz manager of public affairs. Was legal liability for the car rental company also a consideration? Says Stifter, "Like with most things these days, that goes without saying."

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