Snapchat Lawsuit Inspires Inaugural Abnormal Use Field Test

Recently, we here at Abnormal Use wrote about a new lawsuit which seeks to hold Snapchat liable for a high speed motor vehicle accident that allegedly occurred as a result of the at-fault motorist’s use of the social media application. Thereafter, we decided to take a more hands-on approach to our work and signed up for the Snapchat. After a week of fiddling with the application, we have a much greater understanding of Snapchat and, thus, a better insight on the lawsuit. Hoping to help our readers who are strangers to Snapchat, we thought we would provide you with out observations and how they relate to the suit’s allegations.

As an initial matter, Snapchat is much different that any other social media app that we have ever used. While we admittedly don’t understand its purpose (perhaps due to our age or our familiarity with much different social media platforms), Snapchat is extremely easy to use. Users can create and post a “snap” with nothing more than the push of a button. When a user opens the Snapchat application, it opens immediately to the camera screen. A quick press of the camera button takes a snap photo. A longer press records a snap video. The user can then dress up the snap with emojis or filters (we will discuss this more later); however, it is not required. The snaps are then saved to the users “story” (which stays live for 24 hours) or sent directly to other users (which are available for 10 seconds after they are viewed). Unknown purpose aside, Snapchat cannot be any simpler.

Twitter and Facebook, on the other hand, require much deeper cognitive processing and interaction from the user. Even though users can (and often do) use the applications to post pictures or videos, Twitter and Facebook typically require the user to think of and type out a sentence or two expressing a thought. Twitter and Facebook require body movements analogous to sending a text message. From a mechanical standpoint, Snapchat and Twitter/Facebook are worlds apart.

What gives Snapchat its character is the ability to alter each photo. Where Instagram focuses primarily on preset filters and borders, Snapchat gives users more personal control over the editing process. At the touch of a button, users can add text, emojis, or drawings. Users also have access to a number of Snapchat filters which can add a somewhat bizarre twist to their photos (i.e. rainbows flowing from mouths, fire emanating from heads, etc.). The ease of use of each alteration is as simple as creating the photo or video in the first place.

The controversy in the Snapchat lawsuit centers around a Snapchat feature we refer to as the “speed filter.” The speed filter utilizes a phone’s GPS system to calculate the speed a user is moving at the time the snap is created. The speed reading is added to the photo/video from the editing screen with a simple swipe to the left. Like the other editing features mentioned above, the speed filter is available as an option only after the photograph or video has been captured.

Being dedicated to our jobs, we put the speed filter to the test. (Not behind the wheel of a car, of course). As a PASSENGER in the front seat of a car and again on the rear of a jet ski, we found the speed function to be fairly accurate, typically measuring speeds within 2-3 mph of that posted on the vehicle’s speedometer. However, the speed filter routinely registered 1-2 mph of speed when sitting still as if it was trying to compensate for the earth’s rotation. Nonetheless, its ease of use was as seamless as the other Snapchat features.

The most important component of our findings and perhaps the most relevant to the lawsuit is that we have yet to find any component of Snapchat that encourages users not to exercise sound judgment. Admittedly, we found no warnings apparent within the application notifying users not to use the speed filter while operating a motor vehicle. Last we checked, there are also no such warnings about plenty of other things which can distract drivers like changing radio stations, applying make-up, or reading the newspaper. We expect motorists to know better when getting behind the wheel of a car. The plaintiff in the lawsuit contends that Snapchat encourages such behavior by awarding users with Snapchat trophies for using the speed filter. It is true that Snapchat has a trophy system to signal various milestones and use of certain features. However, nowhere does Snapchat award a “Using the Speed Filter While Driving” trophy. The speed filter has a completely valid purpose for those traveling on a bike, a horse, a plane, or as passengers in car. We found nothing within Snapchat that encourages users to use the filter while driving or otherwise serve as a substitute for sound judgment.

When you understand what the speed filter actually is and how it operates, it becomes apparent that there is no difference between Snapchat and anything else that conceivably distract a driver.  Now that we can appreciate Snapchat, our initial concerns about the lawsuit resurface. Holding Snapchat liable in this lawsuit opens the door to a whole host of distracted driving lawsuits. Twitter, Facebook, service providers, and cell phone companies all stand in the shoes of Snapchat as potential targets. Taking the argument to its extremes could even lead to suits against any product manufacturer whose product was negligently being used by a distracted driver. The reason these suits are traditionally atypical is that fault lies with the distracted driver. By any negligence standard, the reasonable person knows better than to use a cell phone or application while driving. The true tortfeasor is easily identifiable. No filters necessary.

Friday Links

Okay, so we here at Abnormal Use saw Captain America: Civil War last night, and we were wowed. Go see it, and if you’ve not been following the series of posts by The Legal Geeks on legal issues relating to Captain America, please see here.

Don’t forget! A week from today, our editor, Jim Dedman, speaks on lawyer blogging to the South Carolina Bar in Columbia, South Carolina. For more information, please see here.

The Southeastern Symposium on Mental Health will be held in Greenville, South Carolina next week on May 5-7, 2016. Our own Stuart Mauney will be presenting at the Symposium on “Occupational Hazard: When Doctors or Lawyers Get Depressed.” Stuart is a long time mental health advocate and frequent speaker on mental health issues in the legal profession. For more information, see here.

Next week offers us yet another Friday the 13th. Beware.

Worker’s Compensation Does Not Eliminate the Possibility of a Third Party Tort Claim

Workers Comp

In explaining potential exposure to a number of our clients, we have seen a recurring misconception that has led them to believe that they have minimal or no exposure – that because the injured individual has received worker’s compensation benefits, the injured individual has no claim against any third parties. In South Carolina, it is generally true that the injured individual cannot maintain a lawsuit against his or her employer for an on-the-job injury if the employer maintains worker’s compensation insurance; however, this does not prevent the injured individual from filing a third party tort claim against someone or some entity that is not his or her employer.  Consider the following hypothetical:

Jim Jones is injured while operating a forklift at a manufacturing facility at which he is employed, and he becomes seriously injured.  He goes to see a lawyer.  The lawyer determines that Jones’ employer maintains worker’s compensation insurance and that Jones was injured in the course and scope of his duties.  The lawyer also determines that he can make the argument that the forklift was defective, and that the forklift defect caused Jones’ injuries.

In the scenario above, Jones can maintain a worker’s compensation claim against his employer.  He can also file a lawsuit against the manufacturer of the forklift. The amount of recovery in the worker’s compensation claim is unaffected by the tort lawsuit; however the worker’s compensation insurance carrier will have a lien against anything that Jones recovers against the forklift operator. In the lawsuit against the forklift operator, no evidence regarding the amounts recovered in the worker’s compensation claim is admissible at trial. Consider the following recovery scenario under our hypothetical above:

Jones recovers $30,000.00 in his worker’s compensation claim. His lawsuit against the forklift manufacturer then goes to trial and the jury awards $60,000.00.

Under the scenario above (without taking into consideration any negotiation of the lien or attorney’s fees), the worker’s compensation insurance carrier would take $30,000.00 of the $60,000.00 awarded by the jury to satisfy its lien, and the $30,000.00 balance would go to Jones. So, the forklift manufacturer is still responsible for paying $60,000.00, but half of the money goes from Jones to his worker’s compensation insurance carrier.

Hopefully this helps to shed light on the interplay between worker’s comp claims and third party tort claims arising out of the same incident. Obviously, this is an extremely oversimplified explanation and there are many other variables and nuances to consider in the real world. But that’s why we are here!

Off-Duty Deputy Punched After Getting Between Food and “Hangry” Customer, Deputy Lucky To Be Alive

On behalf of myself, my wife, and my young children, I would like to take a moment to thank Oklahoma County resident Lindsay Williams for her courage and willingness to take drastic measures to bring national awareness to an all-too common medical condition that is tearing our communities apart. Ms. Williams, we owe you a debt of gratitude for doing what was necessary to bring this unfortunate disease into the national spotlight.

On April 1st at around 12:30 p.m, Ms. Williams was dining at a local Oklahoma City establishment when, through no fault of her own, she was forced to assault a fellow customer. You see, Williams was hungry that day. Scratch that, she was hangry. If you aren’t a member of the medical community, you may be asking yourself – what is “hangry”? The American Journal of Absurd and Fabricated Medical Conditions describes hanger as “a sudden breakdown of mental and emotional stability resulting from extreme hunger.” According to a 2015 study by the National Hunger-Induced Rage Association, this tragic condition affects over five million U.S. citizens every year. Common side effects include uncontrolled screaming at children and pets; sudden outbursts of hysterical crying; and violence towards inanimate objects. In rare circumstances, patients suffering from extreme hanger can experience vivid dreams of entering into a Nathan’s Hot Dog Eating contest.

Needless to say, Ms. Williams was not someone to be trifled with on the afternoon of April 1st as the hanger flowed through her veins (and stomach). Her first visit to the restaurant’s salad bar went as anyone would expect. She made a beautiful, plush salad using her bare hands to select ingredients for her plate. Did she use the fancy salad tongs provided by the restaurant? Of course not. She was hangry. There’s no time for frilly utensils when your stomach is growling like grizzly bear and your blood is reaching a boiling point. Apparently the first salad didn’t tame the beast because shortly thereafter, Williams returned to the salad bar for round two. As she compiled the freshest ingredients onto her plate, a fellow customer had the audacity to confront Williams about the use of her bare hands to make the salad. BIG MISTAKE. Acting in what any hangry person would deem to be an appropriate fashion, Williams turned to the customer and promptly punched her in the nose.

Williams didn’t know the stranger was an off-duty deputy with the Oklahoma County Sheriff’s Department. But as a husband and father who often has to identify the early signs of hanger to diffuse potentially nuclear situations around the house, I have no doubt the deputy ignored the tell-tale symptoms of hanger displayed by Ms. Williams. Call it a sudden medical emergency, temporary insanity or assumption of risk… but I give Ms. Williams a pass on this one.

UPDATE: One Month In, CPSC Still Shying Away from Losing Battle in Zen Magnets Case

A month ago, we here at Abnormal Use reported on a huge decision in the fight against the draconian measures of the Consumer Product Safety Commission to ban spherical desktop magnets. In an order dated March 25, 2016, Administrative Law Judge Dean Metry found that small rare earth magnets (“SREMs”) are not defective, did not contain inadequate warnings, and, when sold with appropriate warnings, are not substantial product hazards. The ALJ order came on the heels of a March 22, 2016 decision from a a related case pending in the U.S. District Court for the District of Colorado involving Zen Magnets’ sale of certain recalled products it acquired from another company (Star Networks USA) after that company reached a settlement with the CPSC. At the time of our writing, reports on the March 22, 2016 and the recall of “dangerous” magnets dominated the interwebs.

Some four weeks later, a quick Google search for “Zen Magnets” will easily reveal plenty of reports from various entities about the Zen Magnets’ victory. Venture over to the CPSC’s website, however, and the order is buried on a page containing the public filings from all of the CPSC’s adjudicative proceedings. Now, there is nothing wrong with the CPSC placing the order in this location. It is where it belongs, and we certainly wouldn’t expect for a report on a loss to be found front and center on the main page. The problem though is what is on the main page – a highlighted report of the March 22, 2016 decision, banning the sale of recalled products Zen acquired from another company.

Ordinarily, we have no problem with the “highlight your wins, gloss over your losses” approach. It is natural, and we are all guilty of it from time to time. However, when two decisions are issued within a few days of each other and the CPSC chooses to highlight one with the misleading title, “Federal Court Orders Zen Magnets Recall” without proper context, it is a problem. CPSC, you can highlight what you want, but let’s be clear. One decision specifically found that Zen Magnets are not defective and are not substantial hazards.  The other made no specific factual findings about the alleged danger of Zen Magnets themselves, but instead, ordered Zen Magnets to stop selling recalled products it acquired from another company.  When you say, “Federal Court Orders Zen Magnets Recall,” why don’t you let Zen Magnets’ buyers know what that really means?

Some Class Members Unhappy About Uber Class Action Settlement

Uber Settlement

We have previously covered developments in the Uber class action saga here and here. A settlement of one of the class actions has reportedly now been proposed, but it still must be approved by a San Francisco federal judge. The settlement provides a $100 million payout to drivers, which equates to a payout per driver of between twelve dollars to a few thousand dollars, depending on how many miles they drove. However, the deal is apparently contingent upon Uber’s company valuation increasing by 150 percent. There are also non-monetary provisions included in the settlement which are set to expire in two years (but they can be extended if Uber so decides). According to an industry blogger, the following is a sampling of some of the non-monetary provisions of the settlement:

  • Uber will publish a deactivation policy for the first time;
  • There will be an appeal process following deactivation;
  • Drivers can post signs for tips in their vehicles; and
  • There is no more deactivation for low acceptance rates.

The blogger also expressed discontent with the settlement, and his post apparently received over 100 comments.  A hearing on the proposed settlement is set for June, and it will be interesting to see whether the settlement is approved.

Friday Links

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Only one more week until Captain America: Civil War is released in theatres. We’re excited, as we are sure you are, as well. In fact, we are still recovering from the depressing onslaught of Batman v Superman: Dawn of Justice, so a new Cap film will be a nice change of pace. Perhaps we’ll provide a report of our thoughts on the film next week. In the meantime, above, you’ll find the cover of Civil War #2, published not so long ago in 2006 (which, although a decade ago, was a time a good Cap movie was still unthinkable).

Did you go back and listen to Purple Rain this week? If not, please do so. Of course, Prince didn’t make it very easy to find his songs online, did he? Nothing on Spotify, really. Alas.

Our favorite tweet of the week comes from our own Stuart Mauney (and you can see why we here at Abnormal Use dug it).

Abnormal Use At The South Carolina Bar Employment & Labor Law Midyear Meeting

If you’re in Columbia, South Carolina on May 13, 2016, you can see our editor, Jim Dedman, present to the South Carolina Bar Employment & Labor Law Midyear Meeting. He will be speaking on “Blogging for Lawyers and Related Ethical Issues” (a presentation he has updated to include a number of cases that have arisen in 2016. He will be the final speaker of the day at 3:45 p.m.

The only worry: The seminar takes place on Friday the 13th.

For more information on the seminar (or to register), please click here.

Snapchat Sued Over Distracted Driving Accident

According to a report from GeekWire, social media giant Snapchat has been sued in Georgia for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application. Before we dive into the meat of it, we must disclose that our initial reaction to hearing of the suit was to cry foul and lament the future slippery slope of holding manufacturers liable for the poor decisions of users while operating a motor vehicle. After all, if Snapchat can be liable for allegedly distracting a driver who uses the app while driving, can cell phone manufacturers or service providers be sued for a driver’s decision to text and drive? What a perilous world we would live in right? Much to our chagrin, however, this suit is not what it may first appear.

Snapchat is primarily used for creating multimedia messages referred to as “snaps.” A snap consists of a photo or short video which can be edited to include filters and effects, text captions, and drawings. One of those effects is a filter which tracks the speed of users, including while the users are driving. Now, it doesn’t take a rocket scientist to see where this is going.

According to the complaint filed against Snapchat and Christal McGee by Wentworth and Karen Maynard, at approximately 11:15 p.m. on September 10, 2015, McGee was using the Snapchat while operating her Mercedes C230. Because she was allegedly motivated to drive fast due to the Snapchat speed filter, she accelerated her vehicle to speeds in excess of 100 mph. Unfortunately, because McGee was allegedly distracted by the app, she did not notice that a vehicle driver by Wentworth Maynard had pulled out into the road. McGee allegedly struck Maynard’s vehicle while traveling 107 mph. As a result of the accident, Maynard allegedly suffered permanent brain damage. McGee posted a snap of herself lying on a stretcher with the caption, “Lucky to be alive.”

While not specifically alleged in the complaint, the plaintiffs’ lawyer released a statement which exposes a number of other details about the moments leading up to the accident. Allegedly, McGee has three passengers in her vehicle, one of whom was pregnant. The pregnant passenger allegedly asked McGee to slow down, but McGee refused, arguing that she was “just trying to get the car to 100 miles per hour to post it on Snapchat.” The passenger allegedly saw the speed on the filter tap out at 113 mph when McGee said, “I’m about to post it.” At that moment, the impact allegedly occurred.

As an initial matter, we must caution that we do not know the merits of any of these allegations. While it is plausible that McGee was traveling in excess of 100 mph, we don’t know if the alleged Snapchat usage, if any, was to blame. Apparently, the accident occurred just before McGee could post the alleged snap, so proving as much will likely have to come from the passenger witnesses.

With that said, if the allegations are true, this is certainly a case distinguishable from our initially feared slippery slope hypotheticals. While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car.

Nonetheless, we still question whether Snapchat can be held liable for such an accident. Even if the accident is foreseeable, isn’t a lawsuit such as this one akin to the much ballyhooed suits against gun manufacturers? The app and filter are legal and non-defective. We are not aware of any evidence that it is marketed as a “break the speed limit” filter. The choice to travel in excess of 100 mph ultimately falls on McGee, an able-bodied adult who knew or should have known of the dangers.

We can certainly understand both sides of the argument. This will be one that we will following closely.

The Good Lawyer

I have often heard clients say “We do not hire law firms; we hire lawyers!”  So, who do they hire?  They tend to hire someone they like and trust, and who knows their business like the back of their hand.  But beyond that, what makes a “good lawyer?”

I recently attended a meeting with an insurer with whom our firm has a relationship.   A number of areas were covered, including the relationship between the insurer, outside counsel and insureds; the importance of compliance with litigation guidelines; the company’s claims handling philosophy; and the importance of timely communication with both the insurer and insured. Then, we heard from a claims officer who had recently read some wisdom on what makes a “good lawyer.”  She shared the article with us; it provided some useful reminders (although the original author and publication are unknown). If you know who first penned these words, let us know!

The Good Lawyer

  1. Is always honest and truthful.
  2. Listens to the client.
  3. Knows who the client is, remembers who the client is, only represents the client, and does not surprise the client.
  4. Communicates with the client.
  5. Is the messenger, not the message.
  6. Is willing to tell the client or prospective client that the law sometimes does not offer a remedy to every particular problem.
  7. Explains everything to the client in terms that the client can understand.
  8. Has a positive attitude, but does not promise success.
  9. Always honors the attorney-client privilege.
  10. Is always alert for potential conflicts of interest and investigates and resolves all potential conflicts before undertaking any representation.
  11. Becomes knowledgeable about the applicable law and facts with regard to the client’s case.
  12. Maintains their objectivity about their client’s case.
  13. Never underestimates an opponent and never embarrasses anyone.
  14. Treats everyone with the respect and dignity that the lawyer expects to be treated.
  15. Strives for excellence. Excellence with humility in the representation of the client.
  16. Is diligent, persistent and relentless in the pursuit of representing their client.
  17. Adheres to the highest professional and ethical standards.
  18. Is proud of being a good lawyer and how they serve each of their clients.

In response, please share your own thoughts on what makes a good lawyer.