Case Brief: Moore v. Barony House Restaurant

By Brian A. Comer

Today's case brief is Moore v. Barony House Restaurant, LLC, 382 S.C. 35, 674 S.E.2d 500 (Ct. App. 2009). This is (predominantly) a warnings case, and its significance relates to the concept that there is no duty to warn of open and obvious dangers associated with use of a product.

FACTUAL BACKGROUND: A doctor hosted a Christmas party in 2004 in which folks had socialized at one section of his property and then were transported to a different section across a public road for dinner. 382 S.C. at 38, 673 S.E.2d at 502. The deceased worked for the caterer and was in charge of transporting party-goers to the dinner section of the property via a golf cart. Id. Plaintiff attempted to cross the road in a golf cart that was not equipped with lights. Id. An SUV was approaching, did not see the golf cart in time, struck the cart, and killed the driver. Id. at 39, 673 S.E.2d at 502.

PROCEDURE: The deceased's estate ("Plaintiff") brought suit against the various parties responsible for the party (the doctor, caterer, golf cart manufacturer, etc.). 382 S.C. at 39, 674 S.E.2d at 502. Against the manufacturer, Plaintiff alleged causes of action for strict liability based on the manufacturer's used fleet golf cars being unreasonably dangerous in light of their foreseeable use and based on inadequate warnings. Id. Plaintiff also alleged negligence based on a failure to warn. Id. The trial court granted summary judgment in favor of the manufacturer on these claims, and Plaintiff appealed. 382 S.C. at 40, 674 S.E.2d at 503.

ISSUES: Whether the trial court erred in granting summary judgment on Plaintiff's strict liability and negligence claims relating to the manufacturer's alleged failure to warn. 382 S.C. at 40, 674 S.E.2d at 503.

DISPOSITION: The South Carolina Court of Appeals affirmed the grant of summary judgment by the trial court. 382 S.C. at 43, 674 S.E.2d at 504.

RULES AND OPINION: The Court first addressed Plaintiff's strict liability claim. 382 S.C. 40, 674 S.E.2d at 503. Plaintiff contended that the golf car was defective and unreasonably dangerous because the manufacturer marketed the used fleet golf cars for operation on public roads without affixing lights and reflective devices or without providing warnings. Id. at 41, 674 S.E.2d at 503. The Court disagreed and stated that while lights and reflectors would make the carts more safe, the absence of such optional safety features did not make the cart defective. Id. "'Most any product can be made more safe . . . . [A] bicycle is more safe if equipped with lights and a bell, but the fact that one is not so equipped does not create the inference that the bicycle is defective and unreasonably dangerous." Id. (quoting Marchant v. Mitchell Distrib. Co., 270 S.C. 29, 35-36, 240 S.E.2d 511, 513 (1977)). The Court also disagreed with Plaintiff's contention that the golf cart was defective and unreasonably dangerous because the manufacturer failed to provide adequate warnings regarding operation at night and on public roads. Id. The Court acknowledged that a product may be defective and unreasonably dangerous if it is not accompanied by an adequate warning. Id. at 41, 674 S.E.2d at 503-04. However, the Court recognized that a seller is not required to warn of dangers or potential dangers that are generally known and recognized. Id. "[O]peration of an unlighted golf car on a public highway at night presents an open and obvious risk." Id. at 42, 675 S.E.2d at 504. Therefore, the golf cart was not defective and unreasonably dangerous for failure to include a warning about nighttime operation. Id.

With regard to Plaintiff's negligence claim, the Court reiterated that there is no duty to warn of dangers that are open and obvious. Id. at 42, 674 S.E.2d at 504. Furthermore, the Court stated that although questions of negligence are often for the jury, "when the risk complained of is open and obvious to consumers, there is no duty to warn of that risk as a matter of law." Id. The Court also believed that the deceased's negligence in operating the golf cart would prohibit a recovery under a negligence theory as a matter of law. Id. at 43, 674 S.E.2d at 504.

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More on the Punitive Damages House Bill

The House of Representatives passed the punitive damages bill that was the subject of my post yesterday. I'm surprised, primarily because I did not expect a bill that makes this kind of substantial change to progress very quickly through the State Legislature. Article and comments can be found at the State's website, here. I have also cut and pasted it below.

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Bill limiting punitive damages OK'd
S.C. House agrees to $350,000 cap; measure requires one more vote to advance to Senate
By GINA SMITH and LEROY CHAPMAN JR. - gnsmith@thestate.com lchapman@thestate.com

South Carolina juries would be limited to awarding $350,000 in punitive damages to winners of civil lawsuits under a bill approved by the S.C. House on Wednesday.

The proposed cap will make the state more appealing to businesses, argued House lawmakers, even though punitive damages are rare in the state.

House Speaker Bobby Harrell, R-Charleston, and other bill supporters said juries should not be allowed to grant cash awards in the millions of dollars to victims after they have already won compensatory judgments, which typically are based on actual loss of income and property or personal injury.

Punitive damages are additional financial penalties granted in cases in which a jury determines a defendant has behaved recklessly. Opponents of the cap say those judgments serve as the ultimate deterrent for bad behavior and are an important consumer protection.

But House lawmakers sided overwhelmingly - in a 104-9 vote - with those who view punitive damages as bad for business.

"Today, by passing our comprehensive Business Tort Reform Bill, the House took another major leap forward in making South Carolina a great place to do business," Harrell said. "Maintaining our low-tax and pro-business climate is key to our state's economic recovery."

House lawmakers debated the bill for hours Wednesday, with several amendments to raise the cap failing.

Some Democrats challenged the claim businesses would refuse to locate in South Carolina out fear of lawsuits.

Others asked whether any dollar amount is enough compensation for someone who has been maimed or a child who has been killed. Citing runaway Toyotas and incompetent doctors as reasons punitive damages are needed, opponents of the bill say punitive judgments send a message to corporations about protecting consumers.

"Let me tell you what this is truly about; it's corporate greed," said Rep. Chris Hart, D-Richland, who talked about how one insurance company made $58.1 billion in profits last year.

Hart said the bill is about protecting those businesses over the interests of future victims.

Hart, an attorney, also pointed out punitive damages are rare in South Carolina. The state's three largest counties - Charleston, Greenville and Richland - had 136 personal injury verdicts in 2007 and 2008. Punitive damages were awarded in seven, or 5 percent, of those cases.

But Hart and other opponents were a distinct minority in the House, where a lack of a punitive award cap was viewed as a stumbling block to attracting business.

Harrell and House Judiciary chairman James Harrison both made the point that neighboring Georgia and North Carolina have both capped punitive damage awards.

Harrell said the bill, if it becomes law, would put South Carolina on equal footing.

"Unlike a business in a neighboring state, a business in our state is too often one lawsuit away from being put out of business," he said.

The bill needs one more House vote before moving to the Senate.

Reach Smith at (803) 771-8462.

SC House of Representatives Looking At Punitive Damages

The front page of the State Newspaper has an article today on a bill in the South Carolina House of Representatives to cap punitive damages at either three times the amount of compensatory damages or $350,000, whichever is greater. Link to the article and comments is here. The cut and paste is below. Obviously this would have big implications for all litigation in South Carolina, including products liability.

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House may cap damage awards
Some lawmakers want to limit punitive amounts to $350,000, say more is bad for business

By GINA SMITH - gnsmith@thestate.com

Is a $15 million court judgment too much? Or is $350,000 enough to make the point?

Consider the case of Jerome Mitchell Jr.

The then-17-year-old Florence resident wanted to give blood but was told he couldn't; he was HIV positive.

His parents' insurance company - convinced Mitchell had defrauded it by not disclosing his illness - told the family it would not cover his medical bills.

That decision, the Mitchells contended in a lawsuit against the Fortis insurance company, amounted to a death sentence. In 2004, a jury agreed, awarding Mitchell $186,000 in actual damages.

And the jury also awarded $15 million in punitive damages.

State lawmakers say such punitive awards, although exceptionally rare, are bad for business.

This week, House lawmakers will debate whether to cap the amount that juries can award individuals and businesses as punishment for the bad behavior by others.

In the Mitchell case, the S.C. Supreme Court agreed Fortis "demonstrated an indifference to Mitchell's life and a reckless disregard to his health and safety."

But the state's highest court still reduced the punitive damages awarded.

The bill before lawmakers would not outlaw punitive awards. But it would limit them to $350,000.

"Punitive damages are about punishing somebody, not about making them whole or compensating them for a loss," said House Speaker Bobby Harrell, R-Charleston, a sponsor of the bill.

Harrell said he has no problems with individuals being awarded money for the economic and noneconomic losses that they suffer, including pain and suffering.

But capping punitive damages is an important economic development tool to attract businesses to the state, he said.

"This protects businesses from being put out of business by one lawsuit," said Cam Crawford, executive director of the S.C. Civil Justice Coalition, which represents the business community in tort and workers' compensation issues. "(Punitive damages) is the most important business litigation issue to corporations and even to small businesses."

Most Southeastern states -including North Carolina, Georgia and Florida - cap punitive damages.

Supporters say the House bill would bring South Carolina in line with those states, capping punitive damages at three times the amount of the compensatory damages awarded or $350,000 - whichever is greater. Compensatory damages are losses a victim can prove in court, such as the loss of income. Those are not capped in most cases.

"Punitive damages is something a business looks at when it's deciding whether to do business here," said state Rep. Jim Harrison, R-Richland, an attorney and sponsor of the bill. "We don't want to be at a disadvantage."

However, trial attorneys and some Democrats say they doubt companies pay much attention to whether punitive damages are capped. Additionally, they say big punitive damage awards rarely happen in the Palmetto State, making the bill pointless.

"There's a lot of rhetoric around the nation and in South Carolina about lawsuit abuse. But the data in South Carolina doesn't bear that out," said Mike Hemlepp, executive director of the S.C. Association for Justice, formerly the S.C. Trial Lawyers Association. "We don't have out-of-control jury verdicts."

Hemlepp points to data from the state's three largest counties, - Charleston, Greenville and Richland - that showed 136 personal injury verdicts in 2007 and 2008. Punitive damages were awarded in seven of those cases. Five of those awards were less than $7,000 each.

"Punitive damages are rare, and they're tough to prove," Hemlepp said, adding juries must decide a defendant is guilty of reckless disregard for the safety and rights of others in order to award punitive damages.

"We just don't see exorbitant lawsuits in South Carolina, much less exorbitant damages," said state Rep. Todd Rutherford, D-Richland, an attorney who said he has heard of S.C. cases where a child was killed and punitive damages did not top $900,000.

But big damage awards do sometimes happen, both sides concede.

The oft-mentioned example is the case of Florence's Jerome Mitchell Jr.

Crawford, whose group represents businesses, said the insurer should have been punished for its behavior but the jury's $15 million punitive damages award was exorbitant.

Hemlepp, who represents plaintiffs, disagrees, arguing the insurer behaved egregiously and was held accountable.

Opponents of the cap also point out anyone slapped with a punitive damages award can appeal the verdict in court. Fortis fought the judgment. The Supreme Court eventually reduced the $15 million damage award to $10 million.

This House bill, if passed, would mark the second time in five years S.C. has capped civil jury awards.

In 2005, the Legislature capped pain-and-suffering awards at $350,000 for medical malpractice lawsuits. Medical malpractice insurance was becoming too expensive for doctors, lawmakers who supported that bill said at the time.

Harrell said it is time to provide more relief to business by shielding businesses from big punitive damage awards.

"It makes sense to cap them."

Reach Smith at (803) 771-8658.

Very Nice Prose, Your Honor

By Brian A. Comer

I'm working on an article and came across the late Judge K.K. Hall's opinion in Vaughn v. Nissan Motor Corp., 77 F.3d 736 (4th Cir. 1996) (applying South Carolina law). As quick background, Vaughn is an automotive case in which the plaintiff filed a products liability action for injuries sustained due to an allegedly defective voltage regulator. The plaintiff claimed that the voltage regulator failed while she was driving, which caused excessive current, which caused the battery fluid to boil. She claimed that she inhaled the toxic fumes and suffered from vocal chord dysfunction and reactive airway dysfunction syndrome, a severe form of asthma.

I'll brief the case at a later date. For the time being, my only reason for doing a blog post on the case is that I liked how the judge described the concept of "defect" under South Carolina law. Aside from its entertainment value, I think it would go a long way toward explaining the concept to a jury.

Not every “defect,” as the term is commonly used, subjects a seller to strict liability. The “defect” must cause the product to be unreasonably dangerous. A car with a bad radio is not unreasonably dangerous; a car with bad brakes may be. Moreover, whether the defect causes the product to be “unreasonably dangerous” is measured by the “ordinary consumer” for whom the product is designed. A circular saw would be quite dangerous if used by a blind man, but a properly designed and manufactured saw is safe and useful to an ordinary person. Consequently, circular saws are not per se defective, notwithstanding a fingerless blind man here and there.

Very nice prose, Your Honor. The lesson? If you come across any fingerless blind men, it's best not to bring up the subject of power tools.

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New Subscribing Function

I added a function to the right of the page that allows individuals to subscribe by email. This function is provided by "Feedburner" and my understanding is that you should only receive an email if I update content.

If anyone signs up for this function and you start getting spammed, let me know and I will remove it. If it works as advertised, I thought that it may be a good way for individuals to be notified of new content (without having to check the site every day).

Case Brief: Scott v. Fruehauf Corp.

Today's case brief is Scott v. Fruehauf Corp., 302 S.C. 364, 396 S.E.2d 354 (1990). To be fairly short, this case is pretty substantive in terms of the number of products liability issues it addresses. The most significant issue it addresses is the triggering date for application of the strict liability statute (which is the date of sale of the product, and not the manufacture date).

FACTUAL BACKGROUND: The case involves a defective wheel assembly manufactured by Firestone Tire and Rubber Co. and sold to a trailer manufacturer. 302 S.C. at 367, 396 S.E.2d at 356. The wheel assembly's rim and ring were not designed to be used together. Id. The trailer manufacturer sold the trailer in question to Defendant Fruehauf Corp. ("Fruehauf") in used condition. Id. Fruehauf repaired and reconditioned the trailer, including the tires, but did not break down the wheel assemblies. Id. Fruehauf then sold the trailer to Defendant Piedmont ("Piedmont"), who leased it to Plaintiff's employer. Id. Plaintiff was injured when he attempted to place the wheel assembly on the axle of a trailer. Id. The wheel rim and side ring separated, striking Plaintiff in the head and causing severe head trauma. Id.

PROCEDURE: Plaintiff settled his claim against Firestone for $675,000, with a guarantee of $200,000 if he did not recover against the other parties. 302 S.C. 367, 396 S.E.2d at 356. Plaintiff brought an action against Fruehauf and Piedmont and won $1,125,000 in actual damages against both defendants. Id., 396 S.E.2d at 355. The verdict against Fruehauf was based on strict liability and negligence, and the verdict against Piedmont was based on strict liability only. Id., 396 S.E.2d at 356. Plaintiff also won $1,125,000 in punitive damages from Fruehauf. Id., 396 S.E.2d at 355. The jury also found for Piedmont with regard to its indemnification cross claim against Fruehauf. Id.

ISSUES: The appellate issues that are most substantive in terms of products liability law are as follows: (1) whether strict liability applied where the wheel assembly was placed in the stream of commerce prior to July 9, 1974 (the effective date of the strict liability statute); (2) whether a supplier of a defective product can be liable for negligence if there is no privity between the supplier and injured party; (3) whether the trial court's decision to deny Fruehauf's motions for directed verdict and j.n.o.v. concerning certain issues and submit them to the jury was proper; (4) whether the jury's award of punitive damages against Fruehauf in a strict liability case was proper; and (5) whether the trial judge erred in submitting Piedmont's cross claim for indemnity to the jury. 302 S.C. at 368-71, 396 S.E.2d at 356-58.

RULES AND OPINION: With regard to the first issue, the court disagreed that the manufacture dates of the mismatched ring (1968) and rim (1972) were the pertinent dates for triggering application of the strict liability statute. 302 S.C. at 368, 396 S.E.2d at 356. "The pertinent date to determine [the strict liability statute's] application is the date the product was sold by the seller," and not the manufacture date." Id. (citing Schall v. Sturm, Ruger Co., 278 S.C. 646, 300 S.E.2d 735 (1983)). Since Fruehauf sold the trailer to Piedmont in 1976 and Piedmont leased the trailer in 1979, the strict liability statute applied. 302 S.C. at 369, 396 S.E.2d at 356.

The court also disagreed with Fruehauf's contention that Plaintiff failed to establish that Fruehauf owed him a duty of care since it did not design or manufacture the wheel assembly and was merely a seller. 302 S.C. at 369, 396 S.E.2d at 357. "In South Carolina, . . . the supplier of a defective product is accountable to an injured party on ordinary negligence principles despite a lack of privity." Id. (citing Carolina Home Builders, Inc. v. Armstrong Furnace Co., 259 S.C. 346, 191 S.E.2d 774 (1972)).

The court agreed with the trial court's decision to deny Fruehauf's motions for directed verdict and j.n.o.v. with regard to the issue of whether it breached its duty of care. Id. The evidence supported that Fruehauf was aware of the danger of a mismatched rim as early as 1963 and failed to properly inspect the wheel assembly. Id. Therefore, the issue of breach of duty was properly submitted to the jury. Id. Similarly, there was evidence that Plaintiff's employer warned him to put the tires in a cage before inflating them to avoid exploding rims. 302 S.C. at 369-70, 396 S.E.2d at 357. Therefore, whether Plaintiff assumed the risk or was contributorily negligent were also issues for the jury, and the trial court properly denied Fruehauf's directed verdict and j.n.ov. motions on these issues. Id.

With regard to Fruehauf's punitive damages issue, the court agreed that Barnwell v. Barber Colman Co., 301 S.C. 534, 393 S.E.2d 162 (1989) disallowed punitive damages in an action based solely on strict liability. 302 S.C. at 370, 396 S.E.2d at 357. However, in this case, the jury found Fruehauf liable on both strict liability and negligence causes of action. Id. Punitive damages are recoverable in a negligence cause of action when the conduct rises to the level of a willful, wanton or malicious violation of the plaintiff's rights. Id. (citing Harris v. Burnside, 261 S.C. 190, 199 S.E.2d 65 (1973)). From the evidence, the jury could have reached this conclusion, so the court affirmed the award. Id.

Finally, the court agreed that the trial judge erred in submitting Piedmont's cross claim for indemnification to the jury. Id. Fruehauf and Piedmont shared a common liability to Plaintiff under South Carolina' strict liability law. 302 S.C. at 371, 396 S.E.2d at 358. Both contributed to Plaintiff's injury by selling a defective product. Id. "Parties that have no legal relation to one another and who owe the same duty of care to the injured party share a common liability and are joint tortfeasors without a right of indemnity between them." Id. (citing Atlantic Coast Line R.R. v. Whetstone, 243 S.C. 61, 132 S.E.2d 172 (1963)). This principle required reversal of the trial court's decision. Id. Since both defendants were jointly liable, the court also held that each was entitled to benefit from the setoff for the $675,000 Firestone settlement. Id. The setoff should apply to the award for actual damages instead of the punitive damages award. Id.

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Upcoming DRI Drug/Medical Device Conference

I am happy to post information about legal conferences pertaining to products liability issues. As I stated at the beginning of this blog, I am trying to provide products liability information that is useful to the defense bar, plaintiff's bar, manufacturers, and individuals. Therefore, if anyone has a seminar or conference (regardless of whether it is defense or plaintiff-oriented), please pass it along and I will be happy to post the pertinent information.

The Defense Research Institute is holding their Drug and Medical Device Conference in San Francisco, California this year on May 20-21. Set forth below is the information about the event from DRI's webpage (which you can go to directly at http://www.dri.org/open/SeminarDetail.aspx?eventCode=20100070 ). I attended this conference a few years ago, and it provides a great opportunity to network with other professionals in the drug/medical device arena of products liability work. I also managed to bank up a ton of CLE that seemed to carry over forever, which is also nice.

Information is provided below.
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Description
DRI’s 26th annual Drug and Medical Device Seminar is the preeminent program for practitioners who represent pharmaceutical and medical device manufacturers. We are pleased again to feature a number of nationally recognized attorneys, both in-house and outside counsel, and other professionals, who will address cutting-edge topics that are relevant to all who practice in this area, whether they are associates, lead trial counsel, or in-house counsel. This year’s program will offer a mixture of presentations, such as trial skills demonstrations, panel discussions and individual presentations from leaders in their practice areas. In addition to the outstanding program, there will be numerous networking opportunities, including our annual Young Lawyers Blockbuster. Plan now to join us in San Francisco!

Registration Information
REGISTRATION:The registration fee is $895 for members and those who join DRI when registering and $1,025 for non-members. The registration fee includes CD-ROM course materials, continental breakfasts, refreshment breaks and networking receptions. If you wish to have your name appear on the registration list distributed at the conference and receive the CD-ROM course materials in advance, DRI must receive your registration by Apirl 30, 2010 (please allow 10 days for processing mail registrations). Registrations received after April 30, 2010, will be processed on-site. The link for registration for individuals who are not members of DRI can be found here. If you are a member, logon to the DRI website, and you can register there to receive the member rate for the conference.

HOTEL ACCOMODATIONS: A limited number of discounted hotel rooms have been made available at the San Fracisco Marriott Marquis , 55 Fourth Street, San Francisco, California 94103. For reservations, contact the hotel directly at 415.896.1600. Please mention DRI’s Drug and Medical Device Seminar to take advantage of the group rate of $283 Single/Double. The hotel block is limited and rooms and rates are available on a first-come, firstserved basis. You must make reservations by April 21, 2010, to be eligible for the group rate. Requests for reservations made after April 21 are subject to room and rate availability.

TRAVEL DISCOUNTS: DRI offers discounted meeting fares on various major air carriers for DRI’s Asbestos Medicine Seminar attendees. To receive these discounts, please contact Hobson Travel Ltd., DRI’s official travel provider at 800.538.7464 or you can book your travel on online at RESX.com. If you are a first time user use dri as company, your first initial and last name as Member ID and leave password blank the first time you login to enter a password. As always, to obtain the lowest available fares, early booking is recommended.

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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