Distracted driving is certainly a growing legal issue. We know that texting drivers who cause crashes face civil liability. Similarly, if drivers use apps that distract their attention from the road causing a crash the driver will also be sued. So when an 18 year-old distracted driver caused a terrible crash while using Snapchat to record her speed, allegedly in excess of 100mph, it was no surprise that she was sued by the injured party. What was a surprise to many was that Snapchat, the manufacturer and seller of the app in use by the driver at the time of the crash, was also sued.
In the Georgia lawsuit, Maynard v. McGee and Snapchat, Inc., it was alleged that Crystal McGee, an 18-year-old, was using Snapchat and caused a crash that seriously injured Mr. Maynard. According to the lawsuit, Mr. Maynard suffered permanent brain injury and has not been able to return to work. McGee, like lots of other teens, had downloaded the Snapchat app and regularly used it to communicate with friends. The theory for also suing Snapchat is that Snapchat provided users with a “speed filter” that encouraged Ms. McGee to drive at an excessive and dangerous speed. When using the speed filter, the speed at which the user is going will be captured on the video or photo being taken. It was alleged that Ms. McGee was trying to capture that she was travelling faster than 100 mph at the time of the crash.
In a 2017 decision, a Georgia trial court dismissed the case against Snapchat based on its application of a federal law, the Communications Decency Act (CDA). The CDA was passed to protect interactive computer service providers from being responsible for what others, third parties, posted through their services. The lower Court held that since Snapchat was a provider of interactive computer services and it was a third party who was using those services at the time of the crash, that Snapchat could not be held liable.
Mr. Maynard appealed the lower court decision, and in an opinion dated June 5, 2018, the Georgia Court of Appeals held that the lower court had mistakenly applied the CDA, and as such, that could not be the basis for the dismissal. Mr. Maynard had argued that Snapchat was negligent in creating an app that would be likely to cause drivers to speed creating a danger to innocent roadway users. The Appeals Court found that since Ms. McGee had not posted any content the CDA was not applicable to protect Snapchat. The Appeals Court remanded the case to the lower court for further proceedings.
Now that the CDA was found to have no bearing on the case it will be up to the trial judge to determine if Snapchat has a duty to third persons who are injured as a result of the use of its application or product. When deciding if a duty exists under particular circumstances, courts look at whether the harm suffered should have been foreseeable to the actor, in this case Snapchat. Should it have been foreseeable to Snapchat that providing the speed filter would result in the use of its application by drivers in a fashion likely to cause injury to others? Should Snapchat, as the allegations contend, have recognized that by providing the speed filter it would encourage drivers to drive faster and faster to record a higher speed on their photos? Additionally, does it seem fair to extend liability in this case to Snapchat for the negligent and likely criminal conduct of the driver? Lawsuits based on similar theories against Apple for crashes caused by driver’s texting, or using FaceTime have been dismissed by courts.
Is it fair to hold Snapchat legally liable for the alleged incredibly stupid and reckless behavior of Ms. McGee? Isn’t it the responsibility of the driver to make safe driving decisions? Many jurisdictions do extend legal liability for the reckless and criminal acts of others in order to protect innocent third persons. The best examples include permitting lawsuits against bars by those injured by drunk drivers served to excess, or against businesses where there is a history of criminal conduct on the premises and patrons are assaulted or killed and there are allegations of inadequate security.
It is likely and certainly hoped that Snapchat did not intend for users to try to drive faster and faster, at speeds in excess of 100 mph, while using its app to record higher speeds. But what legitimate purpose does the speed filter have? I don’t think we want people to use Snapchat to measure and record their speed while driving—or bicycling, or skiing, or snowboarding, or doing anything that requires one’s concentration to do it safely. Perhaps Snapchat wanted users to only use its speed filter while jogging or walking, which could be done safely because the speeds are much lower. If the legitimate and safe uses of the speed filter are limited, then perhaps it is not unreasonable to hold Snapchat liable for providing the temptation to drivers to drive faster to record higher speeds and putting the public in danger.
Joel Feldman, Esq., MS is an attorney with the Philadelphia law firm of Anapol Weiss and founded EndDD.org (End Distracted Driving) after his daughter Casey was killed by a distracted driver. He speaks at high schools and businesses across the country. To view a 30 second PSA about parental influences on teen distracted driving go to http://www.enddd.org/psa/ For more information e-mail info@EndDD.org
Joel Feldman is an attorney in Philadelphia who established EndDD.org after his daughter Casey was killed by a distracted driver. Since her death he has spoken to more than 125,000 teens and adults across the country about distracted driving. Mr. Feldman can be reached at info@EndDD.org