Smartphone – Smart User?

Handheld wireless technology has increasingly become the focus of allegations of negligence and contributory negligence in tort claims. The technology’s unparalleled ability to distract both tortfeasors and the recipients of their folly presents a unique set of circumstances for the consideration of the court in assessing liability and its relative apportionment in a broad range of contexts.

If the dream of the first city planner was to craft an environment where citizens could enjoy simultaneously both splendid isolation and close proximity to millions of others, arguably, the Smartphone has made that dream a reality. Our streets and roads are now littered with people of all ages and all walks of life focused on a palm sized screen in preference to, or avoidance of, the life sized world behind it. Leaving aside the unfortunate consequences of that change on our social environment the trend, now all too often, has unfortunate personal consequences arising from accidents caused as a result of distraction.

Canadians are among the fastest growing Smartphone users. Anywhere from 56 to 62% of Canadians are Smartphone users, according to a recent Google study. Eight out of ten Smartphone users admit to not leaving home without their mobile device. While texting is increasingly recognized as significantly more distracting than speaking on the telephone, smartphones bring additional distractions into the mix including: email; Internet; GPS and mapping technology; games; music and video.

Just how dangerous is it to be focusing on your phone instead of the world around you? A recent Dutch study that focused on media player and cell phone use by pedestrians and cyclists found that in relation to road safety, the following types of distractions were associated with Smartphone use:

• Visual distractions;

• Auditory distractions;

• Physical (bio-mechanical) distractions;

• Cognitive distractions; and

• Impacts on state of mind/mood due to music or

conversation.

The effect that using a mobile device has on your spatial awareness is particularly concerning, given the sheer number of decisions that must be made while travelling in traffic or negotiating busy city streets, staircases, parking lots, supermarkets or shopping malls.

A study by Byington and Schwebel published in 2013, found that nearly half of 92 students sampled, aged 17-25, reported using mobile Internet on their Smartphone 8 to 16 times per day. One in five students reports using mobile Internet on their Smartphone often, very often or always while crossing the street. Not surprisingly, a simulator study showed that students distracted by use of the Internet on their mobile devices practiced more unsafe crossing behaviours than participants who were not. These unsafe behaviours included:

• waiting longer before crossing the street;

• overlooking safe moments to cross the street;

• looking right and left less frequently; and

• looking away from the road more often.

What are the consequences of all this distraction? Statistics show increasing numbers of driving and pedestrian-related accidents and deaths linked to mobile device usage. A South Korean study noted behaviours such as changing the song currently playing, answering messages, and browsing the internet were responsible for over 59% of accidents involving distracted pedestrians between the hours of 10am and 6pm, while 39% of accidents involving distracted drivers occurred from 6pm to 12pm. The Seoul study showed the most distracted drivers were aged 20. In the U.S., the National Highways Traffic Safety Administration has reported that pedestrian deaths and injuries rose sharply between 2009 and 2011; analysts list texting while walking as a major contributor to these increases. The Consumer Product Safety Commission reported that approximately 1,152 people were treated in U.S. hospital emergency rooms for injuries suffered walking into telegraph poles while using a cellphone or other electronic device.

Tragically, on April 24, 2014, a lady in High Point, N.C. was killed after her car veered into oncoming traffic. According to police, they were called to the scene a minute after the lady had posted on her Facebook page : “The song Happy makes me so Happy.” Recent incidences of distracted walking that made the press include the case of Bonnie Miller who walked mid email off the end of a pier into Lake Michigan (in March); a man who fell off a Philadelphia train platform onto the railway tracks; and again tragically, the fatal fall of a 19 year old in Melbourne, Australia over a short railing in a parking lot while texting a friend.

The increase in the incidence of injuries and deaths related to Smartphone usage is already being felt by the insurance industry. The 2013 New Jersey decision of Kubert v Best et al has hinted at the potential to hold liable persons texting a driver where it could be shown they knew it was likely the driver would respond while driving.

In assessing and defending claims where distraction may have played a role, it is essential to gather the relevant information quickly. Given the prevalence of less than smart Smartphone usage noted in the statistical studies, and on any casual observation of your average 21st Century high street, information regarding Smartphone ownership and usage should be obtained in the case of every injury claim. Information that should be obtained and preserved includes the cell phone number, cellular carrier, and records including text messages, email and social media posts made in close proximity to the accident time. All potential parties involved should be determined and interviewed regarding mobile device usage at the relevant time. In the case of a defendant receiving texts, the knowledge of the sender as to what the recipient was doing at the time may become key.

There are now apps available that permit a Smartphone user to “see through” their phone using the built in camera, on a somewhat restricted basis, while texting, emailing etc. Whether such applications will reduce the number of accidents or just lull the user into a false sense of security while facilitating the impugned behaviour remains to be seen. A party to litigation, in the meantime, might want to know whether the opposing party had such an app on their Smartphone and why they thought it smarter to look at their handheld instead of where they were actually going. 

Max Hufton and Jessie Cameron are barristers with the law firm Race & Company LLP, primarily involved in the defence of casualty claims. They are both members of Canadian Defence Lawyers. CDL is the only national organization representing the interests of civil defence lawyers. It offers broad opportunities to unite the defence bar over common issues, as well as providing accredited continuing legal education.