In an issue of first impression, the Sixth Appellate District in Modisette v. Apple, Inc. (H044811, filed 12/14/18), held that cellphone manufacturers such as Apple owe no duty of care to third parties to design cellphones in a manner that prevents users from using their phones while driving.

Specifically, the Sixth Appellate District affirmed the trial court’s judgment sustaining Apple’s demurrer without leave to amend. The appellate court held Apple owed no duty of care to a family injured by a distracted driver to implement technology preventing the driver from using the FaceTime application on his iPhone 6 Plus (“iPhone”) while driving.

In Modisette, Bethany and James Modisette, along with their daughter Isabella, sued Apple after they were seriously injured and another daughter was killed, when a driver who was using the FaceTime application on his iPhone crashed into their car which had stopped on the highway due to police activity. The driver admitted to police he was using FaceTime at the time of the crash and his iPhone was found at the scene with FaceTime still activated.

The Modisettes alleged Apple wrongfully failed to implement a safer alternative design in the phone that would have automatically prevented drivers from using FaceTime while driving at highway speed, so-called “lockout technology.”

The Sixth Appellate District addressed whether Apple owed the Modisettes a duty of care. Applying the factors articulated by the California Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108, to be considered when determining whether public policy supports the creation of an exception to the statutory presumption of duty, the appellate court concluded that Apple did not owe the Modisettes a duty of care. It based its determination on two distinct considerations: (1) the tenuous connection between the Modisettes’ injuries and Apple’s design of the iPhone without lockout technology; and (2) the burden to Apple and corresponding consequences to the community that would flow from such a duty.

In evaluating the foreseeability of harm, the appellate court found Apple’s design of the iPhone simply made the driver’s use of the phone while driving possible, but did not directly put the Modisettes in danger. It contrasted the Modisettes’ claims with cases where courts found a sufficiently close connection to warrant recognition of a duty of care notwithstanding the involvement of a third party, including a case where plaintiffs contracted cancer from exposure to asbestos particles at defendants’ workplaces that were carried home on workers’ clothing and another where a police officer motioned a speeding motorist to stop in the center median, causing the motorist to be struck by another car. The appellate court found, unlike the Modisettes’ claims, the plaintiffs’ harm in those cases was closely tied to the defendants’ actions.

The appellate court also concluded public policy considerations, including the burden a finding of duty of care would place on cellphone manufacturers and the consequences to the community, weighed in favor of an exception to the duty of care. In particular, the court focused on laws enacted by the legislature that allow cellphone use while driving under certain circumstances, including a 2016 addition to the Vehicle Code that allows a driver to activate or deactivate a feature on a handheld wireless telephone with a “swipe or tap of the driver’s finger” and earlier legislation that allows cellphone use that is voice-operated and hands-free. The court construed the 2016 addition to the Vehicle Code as implicit approval of accessing smartphones while driving in certain circumstances.

Finally, the appellate court noted courts in other jurisdictions facing similar issues have determined there to be no duty of care. The appellate court cited a Court of Appeals of Indiana opinion which explained that although it is foreseeable drivers who eat, apply makeup, or look at a map while driving may also be distracted and cause an accident, it would be unreasonable to find it sound public policy to impose a duty on the restaurant or cosmetic manufacturer or map designer, rather than the driver, to prevent accidents.

Given the public policy considerations and broad implications of finding a duty of care under these circumstances, the appellate court found California law does not impose a duty on the manufacturer of a cellphone to design it in such a manner that a user is incapable of using it while driving.

The Sixth Appellate District’s creation of a bright-line exception to the general duty of care will be applicable to a general class of cases, a fact acknowledged by the court in its opinion. The opinion is clear that it is the responsibility of the driver to drive with due care. Plaintiffs attempting to attach liability to cellphone manufacturers for injuries sustained as a result of motorists using their cellphones will be unlikely to avoid application of the bright-line rule established in Modisette.