Archive for the 'Personal Injury' Category

Snapchatting Speed Demons: Is Snapchat Liable for their Speed Filter Function?

In 2014, approximately 431,000 people were injured due to distracted driving in the U.S. All these people, hurt because somebody was distracted by something like a text or using social media. One of the most popular social media applications available today is Snapchat. Snapchat allows users to take “self-destructing” pictures or videos of themselves that disappear soon after they are sent.

Snapchat recently added a “speed filter” to its product.  The filter detects what speed you are going and posts it with your snapchat as an overlay. This led, perhaps predictably, to a trend of people snapchatting themselves while driving as fast as possible.

Christal McGee—18-years-old—was driving with three of her friends last September and decided to snapchat herself going over 100mph.  She used her phone to record herself driving her Mercedes at 107 MPH in a 55 MPH zone. She ultimately recorded herself rear ending an Uber driver, Wentworth Maynard, as he pulled out into the road.

The people in Ms. McGee’s car suffered minor injuries. Shortly after the accident, McGee snapchatted a picture of herself strapped to a gurney captioned “Lucky to be alive.” Mr. Maynard was not so lucky, suffering permanent brain damage.

Mr. Maynard and his family are suing Ms. McGee, claiming negligence and loss of consortium. Ms. McGee’s family have issued statements that they believe Mr. Maynard was at fault for pulling out into traffic without giving Ms. McGee time to stop—calling the case “a big setup for somebody who is young and innocent.” However, with the passengers of the car coming forward to corroborate both Ms. McGee’s speed and the fact that she was recording herself, Mr. Maynard’s case against Ms. McGee is very strong.

Mr. Maynard’s injuries are tragic, but his case against Ms. McGee is a fairly standard negligence case. Or it would be if Mr. Maynard and his family weren’t also suing Snapchat for including the speed filter feature in their app.

An Unsafe Product?

The Snapchat speed filter seems like a functionality with very few safe uses. The filter is obviously dangerous while driving, but is there really a safe time to record yourself going as fast as possible? Do we want people distractedly recording themselves while they bike, or skateboard, or jet ski, or even while they run?

Mr. Maynard’s lawyers have described this case as a “products liability” case. Products liability is an area of law dealing with a party trying to recover for damages caused by a defective product. Such a claim can generally be brought by a purchaser of the product, somebody who uses the product, or a bystander injured by the product. SnapChat

A product is considered defective in three situations: where the product is unsafe by design, where the manufacture of the product is defective, or where the product does not have sufficient warnings about its use.

The law in this area varies a bit from state to state, but cases all stem from the same three theories: negligence, strict liability, and breach of warrantee. The first two could come into play in Mr. Maynard’s case against Snapchat.

Negligence

Negligence is one of the most common civil causes of action.  While the exact requirements for negligence vary slightly state-to-state, the accusing party generally needs to establish five things:

  • Duty– That the accused had a duty.  You are always under a duty to act with the care of a reasonable person.
  • Breach of Duty– The accused has failed to act in accordance with their duty to another.         
  • Cause in Fact- But-for the act of the accused, the accuser would not have suffered injury.
  • Proximate Cause- A reasonable person could have foreseen the damages of the accuser arising out of their act.
  • Damages- The accuser has suffered some loss as a result of the accused’s negligent act.

In a products liability context, a duty to exercise ordinary care in providing safe, non-defective products to the public applies to everybody in the chain of distribution for a product—from the designer to the business selling the product. In this case, Snapchat is all of the above.

Where a business designs a product that is not safe when used as intended, they have breached their duty of care. Also, where a product does not include sufficient warnings, the duty of care is breached.

There have been numerous reported incidents of people snapchatting as they speed. A Brazilian woman snapchatted a picture of herself going 110 MPH only to snapchat pictures of her car wreck moments later. Draymond Green of the Golden State Warriors made headlines when he snapped himself driving 118 MPH.  There was even a petition, prior to Mr. Maynard’s accident, asking Snapchat to remove the speed filter.

This being said, Snapchat has taken some steps to try and make the speed filter safer. Snapchat has released a statement that they actively discourage “snapping and driving.”  The app itself includes a very visible warning when the speed filter is used that reads “Do NOT snap and drive.” Their terms of service include a section stating “do not use our Services in a way that could distract you from obeying traffic or safety laws.”

Warning Defect

Snapchat’s many warnings not to drive and snap seem like sufficient warning to avoid liability for deficient warning.  However, Snapchat’s speed filter is arguable unsafe when used as intended—recording yourself moving at a certain speed. If you introduce a product that records how fast people are going, people will record themselves going fast—a danger regardless of speed and mode of transportation.

It seems unlikely the speed filter was made to record people walking slowly and carefully. Snapchat, however, can credibly argue that the intended use of the filter does not involve recording yourself while you move at speed—instead it is for recording speed as a passenger or, if such a thing exists, at safe speeds.

Snapchat’s failure to recall their product after they knew its dangers, a step they still have not taken, could also open them up to negligence liability.

Proving negligent design has always been difficult. Courts are reluctant to question the cost-benefit decisions behind “reasonable” design. It generally comes down to expensive expert testimony. What’s more, a negligently dangerous design must usually be more dangerous than an ordinary customer might contemplate. Snapchat will be able to argue that their design was not the cause of Mr. Maynard’s injury—Ms. McGee’s poor judgment in her use of it was.

Snapchat has several defenses available to it, including asserting that Ms. McGee misused their product. No matter which theory Mr. Maynard ultimately uses, keep your speed filters at the ready, Snapchat will have to move quick to beat this lawsuit.

Jury: GM’s Faulty Ignition Switch was Not Cause of Crash

A New York jury recently reached a verdict in favor of GM Motors in a products liability lawsuit, finding that the defective ignition switch manufactured by the defendant was not to blame for a 2014 accident that injured the plaintiffs.

The plaintiffs alleged that the bad and faulty ignition switch in their 2007 Saturn Sky was the direct result of the accident. GM Motors was the manufacturer of the 2007 Saturn Sky that the plaintiffs were driving at the time of the crash and GM Motors had already recalled the faulty ignition switch on all affected GM vehicles prior to the crash.

After deliberation, the jury came to the conclusion that although the ignition switch in the plaintiff’s vehicle was unreasonably dangerous, the faulty switch was not the cause of the accident. Based on the jury’s decision, the plaintiffs were not able to collect damages to compensate them for the injuries in which they suffered in the 2014 crash.

What Was Required For the Plaintiffs to Recover?

Many would question the jury’s decision, wondering why the plaintiffs could not recover for their injuries even after the jury GM Ignitiondetermined the ignition switch on the plaintiff’s 2007 Saturn Sky involved in the 2014 crash was found to be faulty. In a product liability claim, a plaintiff may receive financial compensation for his or her injuries if the plaintiffs are able to prove that:

In the plaintiffs’ lawsuit against GM, the plaintiffs were successful in proving two of the three above elements. First, the plaintiffs were able to prove that the ignition switch manufactured by GM was defective since the product was already recalled and it was determined that the switch was made unreasonably dangerous. Second, the plaintiffs did suffer an injury from the 2014 accident.

However, the plaintiffs failed to prove that their injuries were a direct result of the faulty ignition switch. In order for the plaintiff to be able to recover damages in the product liability claim brought against GM Motors, the plaintiffs were required to show that the faulty ignition switch directly caused the accident. The jury in this case determined that slippery roadways caused the crash and it had nothing to do with the car’s ignition switch.

What Does the Jury’s Decision Mean for Plaintiffs and For GM?

In this case, since the plaintiff’s were unable to prove that the faulty ignition switch was the cause of their injuries, no damages would be awarded to the plaintiffs. For GM, they would not need to compensate the plaintiff’s any money damages in this case. However, GM needs to fix the problem quickly to avoid any future accidents and injuries that could be caused by the defective ignition switch.

A Prank Too Far: Is Google Liable for the Fallout of an Ill-Conceived Prank?

Google is committed to their pranks, coming up with inventive April Fools jokes every year. Just last year they had twelve different pranks running, from playing Pacman in Google Maps to suggesting the song Sandstorm for nearly every music video on YouTube.  In 2011, Google announced that all their products would default to the Comic Sans font.  They also introduced a Meow Me Now app, which would locate kittens in the user’s vicinity.  This year, Google outdid themselves, and it came back to bite them.

As one of their many 2016 pranks, Google added a “Send + Drop Mic” button to Gmail. The button was an orange affair that read “Send +” then showed an animation of a small hand dropping a microphone.  It replaced the usual “Send and Archive” button and was positioned immediately next to the “Send” button.  When clicked, the button added a gif of a Minion from the movie series Despicable Me dropping a microphone and muted the thread—preventing the user from seeing any further replies. Mic Drop

Even though the button provided a pop-up warning the user what would happen if they sent their email in this manner when you scrolled over it, complaints of issues stemming from the confusingly position of the feature starting rolling in almost immediately after the feature rolled out. A bug in the feature also made the normal send button sometimes function as if the user had clicked the “Send + Drop Mic” button.  Several users reported losing job opportunities, while others complained that the feature had actually cost them their job.

The feature was only up for 12 hours before Google discontinued it and issued an apology for any inconvenience it had created. Google has also stated that they are working to undo the damage by bringing back all replies to “mic dropped” email threads.

Given that it was April Fools’ Day, everything posted on the internet is suspect. There is a real possibility that the users complaining of lost jobs and job opportunities were playing a prank of their own or simply fabricating their stories.  However, the situation raises the question, could Google be liable for the jobs and jobs opportunities lost due to their prank?

Negligent Dropping of Microphones

Negligence is one of the most common civil causes of action. While the exact requirements for negligence vary slightly state-to-state, the accusing party generally needs to establish five things:

  • Duty – That the accused had a duty. You are always under a duty to act with the care of a reasonable person.
  • Breach of Duty – The accused has failed to act in accordance with their duty to another.         
  • Cause in Fact But for the act of the accused, the accuser would not have suffered injury.
  • Proximate Cause A reasonable person could have foreseen the damages of the accuser arising out of their act.
  • Damages The accuser has suffered some loss as a result of the accused’s negligent act.

Where people have lost their job or a job opportunity, their lost wages certainly represent damages. This just leaves the first four elements to figure out.

So did Google fail to act with the care of a reasonable person in their design and implementation of their “Drop the Mic” feature? This is a fairly fact specific determination, but we can look at what we know.  The design of the feature itself included a bug which made otherwise normal use of Gmail send the “Drop the Mic” version of that email.  In order to show whether Google acted with proper care, we would need to see if they knew about the bug prior to release.  Their apology statement certainly implies that they had no knowledge of the bug.  There could be a situation where the feature was created and released in such a slapdash manner that they should have expected substantial issues with the feature.  However, there is no evidence of this at this point and it seems fairly unlikely from a software company as established as Google.

So if the bug in the feature isn’t a breach of duty, is the implementation of the feature? There is an argument that a reasonable person would not have placed the “Drop Mic” button right next to the “send button” for the very reasons that occurred- users would click on the wrong button.  However, the button was of a bright color and looked substantially different from the normal “Send and Archive” button.

What’s more, the button created a pop-up explaining its function when the cursor scrolled over it. This being said, many users complained that they could only see the pop-up right before they clicked the “Drop the Mic” button.  Google has itself stated that they feel they should have included a confirmation pop-up that required a second click before “dropping the mic.”  The facts here are fairly tenuous, but there is a credible argument that Google’s implementation of their April Fools’ joke breached the duty of reasonable care.  This being said, it would be a heck of an uphill battle to prove it.

So with duty and breach established, sort of, let’s look to causation. Could a plaintiff show that but-for the “Drop the Mic” feature they would not have lost their job?  One of the very few instances of somebody losing their job over Google’s prank is a writer who claims he accidentally clicked the “Drop the Mic” button when sending his articles to his editor.  Due to the mute function, the writer states that he never received the suggested edits and missed his deadline.  His editor also took offense to the slight to her suggestions of the minion mic drop and ultimately fired him.

In a situation such as that of the writer, it seems likely that but-for the confusing positioning of the “Drop the Mic” button he would not have lost his job.

There is a real chance that Google may be vulnerable to a negligence lawsuit if the facts available are true and complete. However, not only may there be facts we do not know, the case is already fairly tenuous as to whether Google has actually breached a duty.  There is a real chance that Google may be vulnerable to a lawsuit, however it’s a slim chance at best.

Protecting Your Business

Google has opened themselves up to potential lawsuits through what seemed to be a fun prank. Their danger is at best moderate, but wherever possible, it’s best to avoid such danger all together.  When preparing to offer a product or service, consider the potential implications of the use of that product or service.  If you are unsure whether you might be placing yourself in a lawsuit’s crosshairs, consult a lawyer.  You don’t want to end up in a courtroom with a Judge dropping the mic.

Starbucks Sued for Under Filling their Lattes

Some California residents have brought a class-action lawsuit against Starbucks for not filling their lattes up to the brim. Yep, you read that right.

The complaint claims Starbucks misled its’ customers by only filling their cups ¾ of the way full. According to their standard recipe guide, the Plaintiffs argue the missing 25% of the latte violates a whole slew of rights. Plaintiffs allege Starbucks breached an express warranty, breached an implied warranty of merchantability, received unjust enrichment, violated California’s Consumers Legal Remedies Act, violated California’s Unfair Competition Law, violated California’s False Advertising Law, negligent misrepresented their products, and committed fraud. The Plaintiffs further allege Starbucks made a conscious decision to under fill their lattes in order to save money on milk.

But don’t fret, because this was brought as a class action suit, so all you fellow latte drinkers are potentially entitled to the restitution, compensatory, and punitive damages the Plaintiffs are asking for. Oh yea, plus any interest tacked on for all those lattes you’ve bought!

Is This a Frivolous Lawsuit?

A lawsuit is frivolous when the Plaintiff knows there is little to no chance of succeeding on the merits, or lack of merits, of the case. Frivolous lawsuits can lead to fines in the thousands, contempt orders, or even criminal consequences in extreme situations. Starbucks

Let’s be honest, this is an absolutely absurd lawsuit, but the Plaintiffs may actually be able to win. Here’s a further look into what the Plaintiffs are claiming.

  • A breach of express warranty is anything that a seller represents to a buyer about the product.
    • The complaint alleges Starbucks expressly warranted their lattes contained “12 fl oz” for a Tall, “16 floz” for a Grande, and “20 floz” for a Venti, which is in fact true. The question is whether Starbucks breached their express warranty by only filling their lattes ¾ of the way to the top of the cup.
  • A breach of an implied warranty of merchantability is anything that is guaranteed to work as claimed.
    • Basically the same argument as above, except they added that the lattes were not fit within the market for their intended purpose.
  • Unjust enrichment is when one party is enriched at the expense of another.
    • Plaintiffs allege Starbucks was unjustly enriched in retaining revenue from the purchases of the lattes.
  • California’s Consumers Legal Remedies Act prohibits representing goods that have quantities, among other things, which they do not have.
  • California’s Unfair Competition Law prohibits unfair, deceptive, untrue or misleading advertising.
  • California’s False Advertising Law prohibits just what it says—false advertising.
  • Starbucks negligently misrepresented or negligently omitted material facts about the lattes.
  • Starbucks provided false or misleading material information and failed to disclose material facts about the lattes, i.e. fraud.

On the face of the legal issues presented, the Plaintiffs make some decent arguments that Starbucks misrepresented the actual size of their lattes. Although ridiculous, they may have enough to not be considered a frivolous lawsuit.

However, in order to win, they are going to have to prove that an average person who purchases the lattes expects to get exactly 12 ounces (or 16 and 20 ounces) in their latte. How many of us, when ordering a drink, expects it to be filled to the brim of the cup. I know I don’t. Wouldn’t filling the cup to the brim be quick to spill? I see another McDonald’s hot coffee lawsuit coming out of this.

Additional, the Plaintiffs need to prove actual harm in order to get an award for damages and that may be hard to do. The Plaintiffs allege harm because they state they would not have purchased the lattes on the same terms had they known the cups were in fact not filled all the way to the top.

Starbucks Can Fight Back

Starbucks has responded that they believe the case is without merit. Not only is each drink hand prepared, which inevitably results in variances of each drink, but Starbucks ensures that if a customer is unhappy with the preparation of their drink, they will remake the beverage at no cost to the consumer.

Starbucks can file a motion for summary judgment once all discovery is complete. Summary judgment is a judgment entered by the court in favor of one party without a full trial. These type of motions are filed if one party believes either the other doesn’t have enough evidence to prove their case or there is enough evidence that proves no liability.  Essentially, if Starbucks believes the Plaintiffs don’t have legal merits for the case, they can ask the court to make a decision without the need of a trial.

When you go to McDonald’s, or any other establishment, and order an iced tea, it’s filled with your beverage plus ice. You aren’t technically getting the full ounces represented on the cup. Based on the Plaintiffs’ arguments against Starbucks, all drink suppliers could potentially be sued on the same basis. A judgment in favor of the Plaintiffs would set a horrible precedent.

Will California Raise the Legal Smoking Age to 21?

In the 1950s, smoking was the epitome of cool. Movie stars such as James Dean and Humphrey Bogart were never without a cigarette. Actress Audrey Hepburn made smoking look glamorous. Advertisements even encouraged pregnant women to smoke to reduce their baby’s birth weight. Back then, we didn’t know just how harmful it is to blow smoke into your lungs.

Nowadays, we know that smoking causes a host of fatal diseases. The tobacco industry constantly loses customers when current customers quit or die from smoking-related illnesses. In order to survive, tobacco companies must attract a new generation of tobacco users, and that’s exactly who they target: the next generation.

California intends to protect today’s youth with new legislation. California’s current smoking law prohibits the selling of tobacco to any child under 18 years old, but the California legislature gave final approval to bills that would raise the smoking age to 21 and regulate electronic cigarettes. It is now awaiting a signature from Gov. Jerry Brown.

If it becomes law, California will be the second state alongside Hawaii to increase the smoking age to 21. More than 100 cities, including New York and Boston, have already raised the age limit.

Youth Related Smoking

Tobacco use in the United States is established primarily during adolescence. Whether they use standard cigarettes, electronic cigarettes, or hookahs, statistics demonstrate that nearly 9 out of 10 cigarette smokers first tried smoking by age 18. Even more alarming, each day in the United States, more than 3,800 youth aged 18 or younger smoke their first cigarette. No Smoking

Tobacco companies are savvy and use flavorings in their products to make them more appealing to youth. Most adolescents 18 or younger reported using a flavored tobacco product within the last 30 days.

The negative effects of smoking are staggering. Studies suggest if smoking continues at the current rate among youth in the U.S., 5.6 million of today’s Americans younger than 18 will die early from smoking-related illnesses. To give you further perspective, that’s about 1 out of every 13 Americans aged 17 or younger alive today.

Criticism of Legislation

In spite of the evidence that something needs to be done to protect today’s youth from this silent killer, experts that oppose the legislation claim that raising the smoking age to reduce tobacco use among teens does not work. Specifically, experts say that there is no research to show that raising the smoking age to 21 will deter teenagers from smoking.

Experts also claim that although the age increase may make it so less tobacco is sold to minors, there will be no effect in the ability of high school students to get cigarettes. They point to the existing evidence which demonstrate most people have tried their first cigarette before the legal age of 18.

Others claim that raising the age limit to smoke takes away a fundamental right afforded to all adults. In the United States, one needs to be 18 to vote or fight for the country. For all intents and purposes, people are considered adults as soon as they turn 18. Adults should be able to make decisions on their own without interference of government regulations.

Support of Legislation

Despite the naysayers, there is plenty of support for this legislation. Many believe that nicotine enslaves smokers in their addiction. Most people are unable to quit smoking in spite of numerous attempts to quit. If teenagers are unable to buy tobacco legally, it reduces the chance that they will become addicted at a young age.

Others hope that policies that reduce or delay initiation of smoking could have a large impact on public health. Raising the legal minimum purchase age of cigarettes from 18 to 21 could be an effective way to reduce youth smoking by making it harder for them to buy cigarettes. The legislation may also reduce the number of legal buyers teenagers encounter in their normal social circles, further limiting their exposure to tobacco products. Supporters think the legislation will prevent young people from dying prematurely because of lung cancer, stroke, emphysema, and heart disease. The American Academy of Pediatrics agree, claiming that premature deaths would decrease by 223,000, while lung cancer related deaths would decrease by approximately 50,000 per year.

Studies also suggest that medical cost savings far outweigh costs incurred through enforcement or checking IDs. Individual retailers incur the cost of checking IDs and the state incurs costs on enforcement, but overall states save in reduced health care expenditures.



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