Last year, in Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021), the Ninth Circuit held that Snap—the maker of the app Snapchat—could potentially be held liable under a negligent design theory for multiple deaths caused by a driver hitting a tree at almost 115 mph while using the “speed filter” on the Snapchat app. The court held, among other things, that Snap was not insulated from liability by Section 230 of the Communications Decency Act.
Recently, the Georgia Supreme Court followed suit and held Snap must face potential liability under Georgia law for a similar crash. In Maynard v. Snapchat, Inc., No. S21G0555, 2022 WL 779733 (Ga. Mar. 15, 2022), the Georgia high court reversed a court of appeal decision upholding Snap’s motion to dismiss the case.
In Maynard, the plaintiffs alleged that Snap could reasonably foresee that its product design created this risk of harm based on, among other things, the fact that Snap knew that other drivers were using the Speed Filter while speeding at 100 miles per hour or more as part of “a game,” it purposefully designed its products to encourage such behavior, it knew of at least one other instance in which a driver who was using Snapchat while speeding caused a car crash, and it warned users not to use the product while driving. The Maynards further alleged that once downloaded, Snapchat’s software continues to download and install upgrades, updates, or other new features from Snap, i.e., Snap continued developing its product and released new versions of the software between the initial launch of the Speed Filter and the date of the crash after obtaining real-world information about how the Speed Filter was in fact being used.
Unlike Lemmon, Maynard did not involve questions of Section 230. Rather, Snap argued it could not be liable for alleged criminal misuse of its product by a third party. The Supreme Court of Georgia disagreed, noting that there is no categorical bar to liability under Georgia law for either product misuse or injuries caused by third-party misuse, stating: “our decisional law does not recognize a blanket exception to a manufacturer’s design duty in all cases of intentional or tortious third-party product misuse.”
The Maynard court also distinguished a number of cases from around the country that have declined to find cell phone manufacturers and providers liable for crashes caused by distracted driving from texting or other use, noting there was a much closer link to the claimed design defect here—a filter specifically designed to encourage speeding—than simply failing to render the product unusable while driving.
This decision hopefully reflects a growing understanding by the courts that app makers and other similar tech companies must be held accountable for the damage they cause, even when the theories of liability do not fit neatly into the traditional molds.