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.

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.