No urge to text

Coulda.  Woulda.  Shoulda.  But didja?

Apple didn’t.

On 12 December 2008 Apple Inc. sought a patent over a smartphone lockout mechanism.  Despite having such a patent, it did not implement it in the iPhone 5.  On 30 April 2014 Ashley Kubiak was driving in Texas when her iPhone 5 received a text message.  She looked down to read it.  The distraction caused her to collide with another vehicle, killing two people and catastrophically injuring a third.  Kubiak was convicted of criminally negligent homicide and sentenced to 180 days imprisonment with five years probation: State v Kubiak, Tyler Morning Paper, 12 August 2014 (4th Texas Jud’l Ct, 2014).

Grim Reaper phone
Image from here

The accident victims and their representatives sued Apple, alleging that it had negligently failed to design the lockout device into the iPhone.  Specifically they argued that receiving a text message causes “an unconscious and automatic, neurobiological compulsion to engage in texting behavior.”  Apple successfully applied to dismiss the claim: Meador v Apple Inc (US Dist. Ct., Schroeder J, 17 August 2017, unreported).  The plaintiffs appealed.

The US 5th Circuit Court of Appeals dismissed the appeal.  The Court noted that it was to apply the law of the forum state as well as that court be determined, without adopting any novel approaches to the law.  In this case the key issue was whether the lack of a lockout device had caused the accident.  That is, would common, practical experience consider it to be a substantial factor.  The Court noted that

No Texas case has addressed whether a smartphone manufacturer should be liable for a user’s torts because the neurobiological response induced by the phone is a substantial factor in her tortious acts. To our knowledge … no court in the country has yet held that, and numerous courts have declined to do so. As such, no authority indicates to us that Texas courts, contemplating reasonable persons and ordinary minds, would recognize a person’s induced responses to her phone as a substantial factor in her tortious acts and therefore hold the phone’s manufacturer responsible.

As a result, for the Court to find that Texas law would view a smartphone’s effect on a user as a substantial factor in that person’s wrong would be an impermissible innovation of state law.

Meador v Apple Inc., 911 F.3d 260 (5th Cir. 2018)

Riva v Pepsico Inc (2015) H&FLR 2015-30

Paul Riva and Danielle Ardagna v Pepsico Inc. (2015) H&FLR 2015-30

United States District Court (Northern District of California)

4 March 2015

Coram: Chen J

Appearing for the Plaintiffs: Roy Arie Katriel (of The Katriel Law Firm)
Appearing for the Defendant: Christopher Chorba (of Gibson, Dunn & Crutcher LLP)

Catchwords: California – product liability – soft drink – carcinogen – dosage – pleadings

Facts: The plaintiffs  consumed “Diet Pepsi” and “Pepsi One” (drinks).  Mr Riva asserted that he consumed Pepsi One two to three times a week; Ms Ardagna that she drank nearly 30 cans of Diet Pepsi a week.  They alleged that each can of these drinks contained 43.5 and 30.5 micrograms respectively of 4-methylimidazole (4-MeI).  A report from the National Toxicology Program found that high doses of 4-MeI resulted in increased levels of bronchioloalveolar cancer in mice.

The plaintiffs brought proceedings against Pepsico alleging that its products had caused them to experience an increased risk of cancer.  They alleged negligence and also strict liability based on defective design and on failure to warn.  They sought the establishment of a fund from which people who consumed the drinks between 2010 and 2013 could be paid for the costs of medical monitoring of potential bronchioloalveolar cancer. The defendant sought to dismiss the proceedings for failure to state a claim.

Held: Dismissing the plaintiffs’ claim, that –

1. The plaintiffs had failed to establish constitutional standing to sue.  To establish standing it was necessary to show that (a) there was an actual (or imminent), concrete and particularizable invasion of a legally protected interest; (b) that the injury was fairly traceable to the defendant’s actions; and (c) that it was likely that the injury would be redressed by a favourable decision. While an increased risk of injury can establish the necessary invasion of an interest, the increased risk must be credible and not simply a matter of conjecture.  In this case the plaintiffs had not shown that their increased cancer risk was credible and substantial, but merely speculative.

Central Delta Water Agency v United States, 306 F.3d 938 (9th Cir. 2002), followed.

2. In a case of toxic exposure, the cost of periodic future medical examinations intended to encourage early detection and treatment of the disease caused by the exposure (“medical monitoring”) can be claimed.  The need for future monitoring must be a reasonably certain consequence of the exposure.  In considering whether the monitoring is reasonable and necessary, a court must consider five factors –

  • the significance and extent of the exposure suffered by the plaintiff;
  • the chemicals’ toxicity;
  • the relative increase in the plaintiff’s risk of developing the disease due to the exposure, compared with the risk the plaintiff would have had without exposure or the risk of the public at large;
  • the seriousness of the potential disease; and
  • the medical value of early detection and diagnosis.

In the present case, the plaintiffs had not sufficiently alleged a causal connection between drinks and an increased risk of developing the cancer given the significance and extent of their exposure, nor sufficiently pleaded their injury or the toxicity of 4-MeI, nor shown the necessary relative increase in risk.

Potter v Firestone Tire & Rubber Co, 6 Cal.4th 965 (1993), followed.


The Court’s judgment is available here.

Grebing v 24 Hour Fitness USA, Inc (2015) H&FLR 2015-21

Timothy Grebing v 24 Hour Fitness USA, Inc (2015) H&FLR 2015-21

California Court of Appeal (Second District)

29 January 2015

Coram: Kitching PJ, Lavin and Aldrich JJ

Appearing for the Plaintiff: Charles R. Grebing, Andrew A. Servais, and Dwayne H. Stein (of Wingert Grebing Brubaker & Juskie)
Appearing for the Defendant: Jack C. Nick and Robert R. Willis (of Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz)

Catchwords: California – personal injury – faulty machine – waiver – negligence – product liability

Facts: The plaintiff was injured on 9 May 2012 while using a “low row” weight training machine at the defendant’s “24 Hour Fitness” club in La Mirada.  The clip securing the handlebar of the machine gave way, causing the plaintiff to suffer injuries to his head, back and neck.  The defendant conceded that the machine had been fitted with the wrong clip.

The plaintiff brought proceedings against the defendant for negligence, negligent products liability, strict products liability and breach of the implied warranty of merchantability.  The defendant sought and was granted summary dismissal of the proceeding based on the release signed by the plaintiff, relieving the defendant of liability for injury resulting from the negligence by it or anyone acting on its behalf: Grebing v 24 Hour Fitness USA, Inc (L.A. Co. Sup. Ct, Jessner J, 28 February 2014, unreported).  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. A release of liability for future negligence will be valid, unless it is barred by statute or is against the public interest.  The public interest is not generally considered to be impaired by releases relating to exercise facilities or recreational sport.

Tunkl v Regents of University of California (1963) 60 Cal.2d 92 and Capri v L.A. Fitness International LLC (2006) 136 Cal.App.4th 1078, followed.

2. A release of liability for future gross negligence will generally be considered unenforceable as a mater of public policy.  Gross negligence is considered to be an extreme departure from ordinary standards, or a “want of even scant care”.  The available evidence did not suggest the presence of gross negligence.

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.

3. The release covered the risk of defective maintenance or assembly of exercise equipment because this risk was reasonably related to use of the facility and equipment.

Leon v Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, followed.

4. The plaintiff’s claim based on product liability was defective.  A defendant is not liable in products liability if the dominant purpose of the transaction with the plaintiff is provision of services rather than a product, which was the case given the services supplied.

Ontiveros v 24 Hour Fitness USA Inc (2008) 169 Cal.App.4th 424


The Court’s judgment is available here.


Heather ad March 2015

S.F. v Archer Daniels Midland Co (2014) H&FLR 2015-19

S.F. v Archer Daniels Midland Co, Cargill Inc, Ingredion Inc, Tate & Lyle Ingredients Americas LLC and Roquette America Inc (2014) H&FLR 2015-19

United States Court of Appeals (Second Circuit)

11 December 2014

Coram: Chin and Carney JJ, Sweet DJ

Appearing for the Plaintiff: John Michael Hayes (of Law Office of J. Michael Hayes)
Appearing for the First, Second, Third and Fourth Defendants (Archer, Cargill, Ingredion, and Tate): Stephen Victor D’Amore, Dan K. Webb, Scott P. Glauberman, Cornelius M. Murphy and William P. Ferranti (all of Winston & Strawn LLP) and Kevin M. Hogan (of Phillips Lytle LLP)
Appearing for the Fifth Defendant (Roquette): David Ray Adams (of Hurwitz & Fine PC) and Peter N Wang (of Foley & Lardner LLP)

Catchwords: New York – High Fructose Corn Syrup – diabetes – negligence – products liability – defective design – market share liability

Facts: The plaintiff was the father of SEF, an infant who had consumed high fructose corn syrup, of which the defendants were (and are) major manufacturers.  It was alleged that this product was a substanial factor in SEF’s development of Type 2 diabetes.  SF brought proceedings against the defendants based on negligence, gross negligence, strict products liability (in relation to defective design), and failure to warn.  The defendants sought and were granted summary dismissal of the claim: S.E.F. v Archer Daniels Midland Co (2014) H&FLR 2014-8.  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. In general, New York law views claims based on strict products liability and negligence to be functionally synonymous.  To state a claim for defective design in relation to a products liability (or, by extension, negligence) claim, the plaintiff must allege that the the product as designed posed a substantial risk of harm, that it was practicable to design the product more safely, and that the defective design was a substantial factor in causing injury.  The plaintiff’s claim failed because she did not allege a safer alternative design.

Lewis v Abbott Labs, No. 08 Civ. 7480(SCR)(GAY), 2009 WL 2231701 (S.D.N.Y. July 24, 2009); Voss v Black & Decker Manufacturing Co, 59 N.Y.2d 102 (1983); Goldin v Smith & Nephew Inc., No. 12 Civ. 9217(JPO), 2013 WL 1759575 (S.D.N.Y. Apr. 24, 2013).

2. Obiter, a complete ban on a product is not a permissible “safer alternative design” in a design defect case

Clinton v Brown & Williamson Holdings Inc., 498 F.Supp.2d 639 (S.D.N.Y. 2007) and Adamo v Brown & Williamson Tobacco Corp, 11 NY.3d 545 (2008), considered.

3. The case was not appropriate for analysis under the principle of “market share liability” for the substantially the same reasons as those outlined by the trial court.

Hymowitz v Eli Lilly & Co, 73 NY.2d 487 (1989), considered.


The Court’s judgment is available here.



Mohr v Yamaha Motor Co. Ltd (2013) H&FLR 2015-13

Dennis Mohr v Yamaha Motor Co. Ltd (2013) H&FLR 2015-13

Superior Court of New Jersey (Appellate Division)

19 July 2013

Coram: Reisner, Yannotti and Harris JJ.

Appearing for the Plaintiff: Herbert Korn, Robert Westreich and William Reutelhuber (of Herbert M Korn PC)
Appearing for the Defendant: Robert Kelly, Christen Moffa, Jason Schmitz and Christine Delany (of Littleton Joyce Ughetta Park & Kelly)

Catchwords: New Jersey – personal injury – product liability – failure to warn – defective product – misuse

Facts: The plaintiff was a recreational rider of snowmobiles.  On 5 February 2005 he was at he home of a friend in upstate New York and borrowed a snowmobile (manufactured by the defendant) belonging to that friend.  He noticed that it was running erratically and concluded that it had a fouled sparkplug.  In an attempt to clear the sparkplug the plaintiff and another man lifted the rear of the snowmobile by a handle attached to the back of the machine while a third man revved the engine (“the process”).  During this process the snowmobile’s track broke and flew backwards, severely injuring the plaintiff’s leg.  The leg was ultimately amputated.

At trial there was considerable lay evidence that the process was commonly used among snowmobilers in order to clear sparkplugs.  However, the machine’s owner’s manual contained warnings against standing behind the snowmobile or lifting its rear while the engine was running. It was not known whether the manual had been available to the plaintiff (let alone read by him) on the day of the accident.  New Jersey’s Product Liability Act provides that a manufacturer –

… shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably … safe for its intended purpose because it … failed to contain adequate warnings or instructions (1)

The plaintiff brought proceedings against the defendant in the Superior Court of New Jersey on the basis that the snowmobile had a design defect and that the defendant had provided an inadequate warning against lifting the machine while it was running.  A jury upheld the claim based on failure to warn and damages of approximately $2,500,000.00 were awarded: Mohr v Yamaha Motor Co Ltd (2011), Daily Record, 14 April 2011.  The defendant appealed.

Held: Dismissing the appeal, that –

1. In proving that a product was dangerous and required a warning, a plaintiff is required to address the issue of product misuse, either by showing that there was no misuse or that the misuse that occurred would have been foreseeable to a reasonably prudent manufacturer.

Johansen v Makita USA Inc, 128 NJ 86, 607 A.2d 637 (1992); Cepeda v Cumberland Engineering Co, 76 NJ 152, 386 A.2d 816 (1978); Jurado v Western Gear Works, 131 NJ 375, 619 A.2d 1312 (1993); and Ridenour v Bat Em Out, 309 NJ Super 634 (App. Div. 1998), followed.

2. It was effectively conceded that the plaintiff had misused the snowmobile but that the misuse was foreseeable.  Accordingly the real issue for the jury was whether it was sufficient for the manufacturer to place a warning about the relevant risk of injury only in the owner’s manual, or whether a waning should have been affixed to the snowmobile itself.  On the evidence it was amply open to the jury to find that the defendant had provided an inadequate warning.

3. Obiter, A user’s modification of a product will not relieve a manufacturer of liability for a defective product if the defect remains a contributing proximate cause of the accident or the modification was foreseeable.

Soler v Castmaster, 98 NJ 137, 484 A.2d 1225 (1984) and Butler v PPG Industries Inc, 201 NJ Super 558, 493 A.2d 619 (App. Div. 1985), approved.


The Court’s judgment is available here.


(1) N.J.S.A., 2A:58C-2(b).



Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

James Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

United States District Court (Northern Dist. of Alabama)

23 May 2013

Coram: Acker J.

Appearing for the Plaintiffs: Steven Nichols and Shay Samples (both of Hare Wynn, Newell & Newton)
Appearing for the Defendant: Hobart Arnold and James Porter (both of Porter, Porter and Hassinger), Jeffrey Malsch and Anthony Pisciotti (both of Pisciotti, Malsch & Buckley) and David Welborn.

Catchwords: Alabama – tort – firearms – personal injury – product liability – merchantability

Facts: The plaintiff (James Avery) was the owner of a Cobra Model C32 derringer handgun (made by the defendant), which he had been given in around 2004.  He was experienced in using and handling firearms and routinely carried the gun in anticipation of using it for self defence.  In order to be able to use it for this purpose without delay, he customarily carried it without engaging the safety catches.

On 10 February 2010 the plaintiff was carrying the gun in his hands along with a number of other items including soft drink bottles.  As he attempted to throw the empty bottles in a rubbish bin, he dropped the gun, which discharged and shot him in the abdomen.

The plaintiff brought proceedings against the defendant, seeking damages for (as relevant here) breach of an implied warranty of merchantability.  The defendant sought summary dismissal of the claim.

Held: Denying the defendant’s application, that –

1. A claim based on breach of an implied warranty of merchantability can be brought to seek compensation for injury caused by an unreasonable dangerous product.  It is not dependent on (in particular) also having a connected claim under the Alabama Extended Manufacturer’s Liability Doctrine.

Spain v Brown & Williamson Tobacco Corp., 872 So.2d 101 (Ala. 2003), followed.

2. In order to claim for breach of an implied warranty a plaintiff must show that there was such a warranty, that it was breached, and that the breach proximately caused harm.

Storey v Day Heating and Air Conditioning Co., 319 So.2d 279 (Ala. Civ. App. 1975) and Barrington Corp. v Patrick Lumbar Co. Inc., 447 So.2d 785 (Ala. Civ. App. 1984), followed.

2(a). Alabama Code §7-2-314(1) implies a warranty of merchantability of goods into a contract for their sale if the vendor is a merchant with respect to goods of that sort.  A manufacturer can be considered to be such a merchant, despite not having a direct contractual relationship with an injured person, if that person was injured and it was reasonable to expect that they would use the goods in question (1).

Bishop v Sales, 336 So.2d 1340 (Ala. 1976), followed
Ex Parte General Motors Corp., 769 So.2d 903 (Ala. 1999), distinguished.

2(b). Alabama Code §7-2-314 lists a number of conditions for goods to be considered merchantable, including that the goods are fit for the ordinary purposes for which goods of that type are used.  It is a jury question whether (a) self-defence is an ordinary use of a derringer-type handgun, and (b) whether it would therefore be normal to carry it with the safety features unused, such that (c) for the gun to be merchantable it should not fire when dropped with the safety off.

2(c). It is a question for a jury whether any particular event is a proximate cause of a plaintiff’s injury.


The Court’s judgment is available here.


(1) This type of relationship seems indistinguishable from the test for manufacturer’s liability established in the classic case of Donoghue v Stevenson [1932] A.C. 562 (U.K. 1932)



S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

S.E.F. v Archer-Daniels-Midland Co & Ors (2014) H&FLR 2014-8

United States District Court (W.D.N.Y.)

21 April 2014

Coram: Skretny CJ

Appearing for the Plaintiff: J. Michael Hayes (of Law Offices of J. Michael Hayes)
Appearing for the Defendant: Kevin Hogan (of Phillips Lytle LLP) and Dan K. Webb, Stephen V. D’Amore, Scott P. Glauberman and Cornelius M. Murphy (all of Winston & Strawn LLP)

Catchwords: New York – high-fructose corn syrup – diabetes – negligence – product liability – failure to warn – market-share liability – feasible redesign

Facts: The defendants* were manufacturers of high-fructose corn syrup (HFCS). The plaintiff was a 14 year old girl who alleged that she had consumed HFCS in common foods and that this caused her to develop Type 2 diabetes. She sought compensation from the defendants based on negligence, gross negligence, strict products liability and failure to warn of the danger of a product. She relied on the doctrine of market-share liability, whereby a defendant can be presumed liable for a plaintiff’s injury to the extent of its share of the relevant market**.

The defendants’ position was that the plaintiff could neither connect her condition to HFCS, nor to any particular defendant. It was also contended that Federal food-additive laws pre-empted her claim. The defendants applied to dismiss the claim.

Judicial notice was taken that type 2 diabetes could be caused by a number of factors including diet, exercise (or lack thereof) and family history. It was common ground that the law of the state of New York applied to the claim.

Held, dismissing the plaintiff’s claim,

(1) The plaintiff had failed to state a plausible ground for relief and therefore the claim failed.

(2) An implausible claim ought not be allowed to proceed on the basis that may be validated or undermined through discovery.

Ashcroft v Iqbal, 556 US 662 (2009) and Bell Atl. Corp. v Twombly, 550 US 544 (2007), followed.
Pelman v McDonald’s Corp., 396 F.3d 508 (2d Cir., 2005), not followed.

(3) New York law does not allow “market share liability” to apply in cases where the manifestation of injury is not alleged to be far removed from the time of the allegedly harmful product’s consumption. It also does not allow the doctrine to apply where there is no signature injury conclusively linking the product to the harm, and certainly not where there is no clear public policy that it should apply.

Hamilton v Beretta USA Corp., 96 NY.2d 222, 750 NE.2d 1055 (2001) and Brenner v American Cyanamid Co., 263 AD.2d 165 (4th Dept, 1999), followed.

(4) New York law recognizes claims of strict liability in relation to design defects where it can be shown that: the product as designed presented a substantial risk of harm; it was feasible to design it in a safer manner; and the design defect was a substantial factor in causing injury. However, if the necessary redesigning causes the product to cease to exist, a design defect claim must fail.

DiBartolo v Abbott Labs., 914 F. Supp. 2d 601 (S.D.N.Y., 2012) and Clinton v Brown & Williamson Holdings Inc., 498 F. Supp. 639 (S.D.N.Y., 2007), followed.


The Court’s judgment is available here.


* Archer-Daniels-Midland Co, Cargill Inc, Ingredion Inc, Penford Products Co, Tate & Lyle Ingredients Americas LLC and Roquette America Inc.
** Hymowitz v Eli Lilly & Co, 73 NY.2d 487; 539 NE.2d 1069 (1989).