General Publications August 29, 2014.

"Distracted Driving: Technology as a Double-Edged Sword," Law360, August 29, 2014.

Extracted from Law360

It’s no secret that distracted driving accidents are a serious problem, with the National Highway Traffic Safety Administration (NHTSA) reporting there were more than 3,000 distracted-affected crashes in both 2011 and 2012. And where there are lots of accidents, there will be lawsuits and new regulations. Accordingly, vehicle manufacturers and lawmakers alike have been making efforts to reduce the number of accidents caused by distracted driving. Interestingly, technology can both contribute to distracted driving and also offer solutions that help mitigate it.

Distracted-Affected Crashes

Lawmakers from federal and state governments are working to reduce the number of distracted-affected crashes, especially those caused by the use of technology. At the federal level, Congress and the Department of Transportation have made efforts to combat the occurrence of distracted-affected crashes. Congress has designated April as “Distracted Driving Awareness Month,” while the DOT, through NHTSA, has a website dedicated solely to the topic of distracted driving: www.distraction.gov. This year alone, NHTSA has spent $8.3 million on a week-long national advertising campaign, running television, radio and digital advertisements using the phrase “U Drive. U Text. U Pay.” Moreover, NHTSA has made approximately $17.5 million available to states to facilitate the enforcement of state laws targeting distracted driving.

Federal efforts are not limited to passenger vehicles, as the DOT, through the Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration, has promulgated rules that restrict the use of mobile phones and prohibit texting on electronic devices by operators of certain commercial motor vehicles during the operation of those vehicles. More noteworthy for vehicle manufacturers is that NHTSA has issued driver distraction guidelines for in-vehicle electronic devices (see Visual-Manual NHTSA Driver Distraction Guidelines) and is considering driver distraction guidelines for portable and aftermarket electronic devices (see Feb. 16, 2012, NHTSA press release). Moreover, via its New Car Assessment Program, NHTSA recommends certain technologies aimed at preventing accidents that can be caused by distracted driving. Even though these guidelines do not have the force of law, they are worth considering by manufacturers and the lawyers who advise them with regards to the implementation of technology in new vehicles.

Lawmakers at the state level have also taken action to combat distracted-affected crashes. According to NHTSA, 44 states (and Washington, D.C., Puerto Rico, Guam and the U.S. Virgin Islands) ban text messaging for all drivers, and Montana is the only state to not restrict in any way texting while driving. Several states take this issue so seriously that they make the violation of such a law a misdemeanor. In addition, many states address a broad range of distracted driving practices, not simply text messaging or cell phone use. For example, Idaho has a “Distraction in/on Vehicle (List)” component to the contributing circumstances field in police reports, where officers are supposed to list all distractions in the narrative of the report.

State courts also have taken action to combat distracted-affected crashes. For instance, the Superior Court of New Jersey, Appellate Division, in a well-publicized opinion held that “a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.” 432 N.J. Super. 495, 507, 75 A.3d 1214, 1221 (N.J. Super. Ct. App. Div. 2013). Accordingly, an individual could be held civilly liable if he or she sends a text message that causes an accident and knew or had special reason to know that the recipient would view the text while driving. Id. at 1219. Such a ruling, although apparently not yet followed in other jurisdictions, is particularly noteworthy because it puts a duty on someone other than the driver when it comes to texting while driving. Lawyers advising vehicle manufacturers should consider this duty when discussing the potential implementation of any technology that may foster texting while driving, even if not designed to do so (such as in-vehicle display systems).

Vehicle Safety Technologies

Vehicle manufacturers are enacting efforts to reduce distracted-affected crashes, mainly via implementing or syncing with technologies that are directed at minimizing or eliminating car accidents caused by distracted drivers. Many of these technologies are designed to warn drivers of potential dangers that could remain unnoticed while the driver is distracted. One major development in this field has been forward collision warning systems. These systems operate by detecting how quickly the driver’s vehicle is approaching traffic in front of the vehicle and warning the driver when his or her vehicle is gaining on traffic so quickly that an accident may occur. Some of these systems include autonomous braking, which causes the vehicle to brake on its own if the driver does not respond to approaching traffic in time.

According to the Highway Loss Data Institute, there were 211 model year 2013 vehicles with forward collision warning systems available, and 107 of those models included autonomous brake systems. In addition, a 2013 study (Matthew Moore & David Zuby, Collision Avoidance Features: Initial Results) indicates that these systems help reduce the number of insurance claims that are filed, suggesting that fewer accidents may be occurring when such systems are in place. The study also indicates that systems with autonomous brakes are more effective than those without. Unsurprisingly, NHTSA recommends that consumers purchase vehicles with these systems. Moreover, as these systems become more and more utilized in vehicles, lawyers who advise vehicle manufacturers should be aware that there is the potential that such systems will become the state of the art (especially in higher end vehicles that are more likely to incorporate these systems). Indeed, a European Union program called Euro NCAP — which provides information about cars’ comparative safety — now includes autonomous braking systems (including systems without forward collision warnings) in their safety assessments.

Another popular safety feature to be aware of and that is recommended to consumers by NHTSA is the lane departure warning system. Many of these systems use cameras to track a vehicle’s position in relation to lane markings on the road and will warn the driver of unintentional lane shifts. The system is designed to provide warnings that allow the driver to safely steer back to the middle of the lane. Some systems also contain lane keeping support systems, which bring a vehicle back to the middle of its lane when the driver fails to respond to a warning by steering or applying the brakes. A related safety system is the side view assist system that helps monitor a driver’s blind spots. One such system uses ultrasonic sensors to monitor the space in the adjacent lane. The system provides a warning in the rear-view mirror if other vehicles are in the blind spot and will trigger audible warnings if the driver activates the turn signal to change lanes when a vehicle is in the blind spot.

While such technologies are designed to reduce the likelihood of an accident occurring after a driver has potentially been distracted, lawyers advising vehicle manufacturers might recommend that their clients consider incorporating technologies aimed at preventing distracted driving from ever occurring. For example, some technologies attempt to prevent the use of distracting devices, such as cell phones, while a person is driving. These technologies use on-phone GPS or in-vehicle Bluetooth technology to determine when the vehicle is moving and may shut off specific gadgets on the phone or even lock a cellphone’s keypad. Lawyers should recognize that such technologies, while often utilized in the phone rather than in the vehicle itself, may be beneficial to vehicle manufacturers because they could make it more difficult for a user to make the argument that he or she was relying on technology to correct any mistake made while driving. Moreover, these technologies work hand-in-hand with established laws by preventing drivers from participating in illegal distracted driving.

Even more appealing to vehicle manufacturers and the lawyers who advise them could be technology that not only prevents distracted driving, but also monitors when distracted driving occurs. There is currently at least one cellphone app that will monitor and record when there is texting, tweeting or Internet use behind the wheel. This app will even indicate when the driver is speeding over a certain set limit. With these features, the app not only helps to prevent distracted-affected crashes, but could also reduce the number of claims against vehicle manufacturers based on drivers’ claims that they were not distracted while driving. Because the app would show that the driver was in fact distracted by the cellphone, lawyers representing vehicle manufacturers in litigation should consider subpoenaing the app’s records as evidence to support the argument that the driver was responsible for any accident that may have occurred. Additionally, owners of fleet vehicles might want to consider, where appropriate, the use of such apps.

Technologies such as these may be able to reduce the number of injuries and fatalities caused by distracted-affected crashes. For this reason, vehicle manufacturers should continue to include technologies such as these in their cars. However, vehicle manufacturers and the lawyers who represent them need to be ever cognizant that with new technology comes new responsibility. With each technology, the vehicle manufacturer should include non-warranty disclosures and warn that the technology should not be relied on to prevent accidents. Lawyers should ensure that these disclosures indicate that drivers must continue to be responsible for their actions while driving and should not drive while distracted.

Ultimately, through policies, laws and technologies such as those discussed in this article, we may be able to reduce or even eliminate the number of distracted-affected crashes. Until such crashes are eliminated, however, vehicle manufacturers (and manufacturers of devices that may distract drivers) should continue to seek technologies that both prevent distracted driving and monitor when drivers are indeed distracted.

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