Drilling Down: The Duty to Warn and the "Obvious Risk" Associated With Cell Phone Use While Driving

By Brian A. Comer

There has been a great deal of press lately concerning cell phone use while driving, including a recent settlement in a South Carolina case involving a driver who was using her cell phone when she struck and killed two cyclists. The case and settlement prompted me to wonder one morning, "Will we ever see a warning on a cell phone advising not to use it while driving? Or to be careful using it while driving?" As ridiculous as the proposal may sound, I looked at the fast food coffee cup I was holding that said "Caution: Contents Are Extremely Hot" and began to wonder...

So what is the law?

South Carolina courts have held that seller is not required to warn of dangers or potential dangers that are generally known and recognized by users. Anderson v. Green Bull, Inc., 322 S.C. 268, 270, 471 S.E.3d 708, 710 (Ct. App. 1996). In such cases, the product is not defective or unreasonably dangerous because these dangers are contemplated by the ultimate user. Id. (citing Restatement (Second) of Torts § 402A cmt. g. (1965) for the principle that “a product is defective only ‘where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”) (emphasis in original). These dangers are frequently referred to as “obvious risks,” which include matters that should be common sense to the user.

For example, in Dema v. Shore Enterprises, Ltd., 312 S.C. 528, 435 S.E.2d 875 (Ct. App. 1993), the South Carolina Court of Appeals held that an Aqua-Cycle water recreational vehicle was not defective for failure to include a warning label cautioning the user to “watch out for swimmers” and to “avoid strong current, wind, or waves.” In reaching its conclusion, the court stated as follows:

[U]sers of the Aqua-Cycle would be aware, as a matter of common sense, that they should be careful around swimmers in the surf. Because it is obvious that an Aqua-Cycle can cause injury to a swimmer, [the manufacturer] did not have a duty to warn Aqua-Cycle users of that risk.

Id. at 531-32, 435 S.E.2d at 876. South Carolina courts have used similar analysis to determine that there is no duty to warn about overtightening of lug nuts so as to avoid cracking them. Claytor v. General Motors, Corp., 277 S.C. 259, 286 S.E.2d 129 (1982). The general notion is that a person should know-- from common sense -- that if you tighten something too much, you could break it.

In this blogger's opinion, this is the area of law that is applicable to cell phones and whether there is a duty to warn about cell phone use while driving. It is pretty obvious (and a matter of common sense in my opinion) that there is a risk associated with looking at a cell phone, fumbling with it, holding it, trying to press those small numbers on it, or otherwise trying to use it while doing a dangerous activity, such as driving. Why? Because the user is devoting attention to the cell phone instead of the potentially dangerous activity in which they are engaged: driving a 4,000 pound vehicle at a rate of speed and on a road with other vehicles, cyclists, etc.

So, is there a duty to warn a cell phone user not to use their cell phone while driving, or to use caution? Though I am sure that someone may try and make this argument (if they have not already), this seems to be a classic case of "obvious risk."

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