¶ 1 The Estate of Linda J. Barclay Doyle (Plaintiff) appeals from a trial court order granting the motions to dismiss of Defendants Sprint/Nextel Corporation and Samsung Telecommunications America, L.L.C. As an accelerated appeal filed pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp.2010, ch. 15, app. 1, this case stands submitted without appellate briefing. After review of the record on appeal and pertinent law, we find no error and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶ 2 This lawsuit arises from a motor vehicle accident that occurred in Oklahoma City on September 3, 2008. It is alleged that Christopher Charles Hill ran a red light and collided with a vehicle driven by Linda J. Barclay Doyle. According to the amended petition, Linda J. Barclay Doyle died later that day as a result of the injuries she sustained in the collision.
¶ 3 Plaintiff filed the present action claiming Hill was "engrossed in a cellular telephone conversation [when he] ran a red light and negligently collided with the motor vehicle driven by" Doyle. Plaintiff contends that Defendants "were negligent in that they failed to properly warn of the hazard of cell phone use while driving that created a reasonably foreseeable risk of an accident" and proximately caused the collision resulting in Doyle's death.
¶ 4 Both Defendants filed motions to dismiss arguing that Plaintiff cannot establish a negligence claim because Plaintiff cannot show Defendants owed Doyle any duty or that their actions or inactions caused the accident. After considering the motions, responses, replies, and oral arguments, the trial court granted the motions and finding the petition could not be amended or cured, dismissed Plaintiff's claims with prejudice.
¶ 5 Plaintiff appeals.
STANDARD OF REVIEW
¶ 6 We review de novo an order dismissing a case for failure to state a claim on which relief can be granted. Fanning v. Brown, 2004 OK 7, ¶ 4, 85 P.3d 841, 844. Such a review "involves consideration of whether a plaintiff's petition is legally sufficient." Id. When this Court reviews a motion to dismiss, we "must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them." Id.
¶ 7 Plaintiff's claims against Defendants are based on negligence.
¶ 8 We must first determine whether Defendants owed a duty to Plaintiff which is "the threshold question in any negligence action." Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 12, 160 P.3d 959, 964. "A duty of care is an obligation owed by one person to act so as not to cause harm to another." Id. (citing 76 O.S.2001 § 1). Determining whether a plaintiff is owed a duty of care in a negligence action is a question of law, and if no such duty is owed, "there can be no liability for negligence as a matter of law." Id.
¶ 9 When making this determination, "the court considers policy factors that lead the law to say a particular plaintiff is entitled to protection." Id. at ¶ 14, 160 P.3d at 964 (citing Iglehart v. Board of Cnty. Comm'rs of Rogers Cnty., 2002 OK 76, ¶ 10, 60 P.3d 497, 502).
¶ 10 Defendants rely upon the Indiana case of Williams v. Cingular Wireless, 809 N.E.2d 473 (Ind.Ct.App.2004), in support of their argument that they owed no duty to protect Doyle from Hill's careless driving caused by using his cell phone. In a claim similar to this case, the plaintiff in Williams brought a negligence action against a cell phone company for furnishing to its customer the cell phone allegedly being used when the plaintiff's and customer's vehicles collided. Id. at 475. The trial court granted the cell phone company's motion to dismiss for failure to state a claim and the plaintiff appealed. Id. In Williams, the appellate court analyzed the relationship of the parties, the foreseeability of harm to the plaintiff, and public policy concerns to determine whether the cell phone company owed plaintiff any duty of care. Id. at 476.
¶ 11 The Williams court found no relationship existed between the defendant and the plaintiff that would create a duty of care because the plaintiff had no contract with the defendant, was not a customer of the defendant, the accident did not involve the defendant's employee or automobile, and it did not occur on the defendant's property. Id. at 477. Further, the cell phone did not malfunction and cause the plaintiff's injury. Id. Although it can be argued that Oklahoma has not engaged in and relied on this same analysis of the parties' relationship in deciding whether a duty is owed as a matter of law,
¶ 12 The Williams court also concluded it was not foreseeable that the sale of a cell phone would result in an automobile accident. The court stated:
Id. at 478 (citation omitted).
¶ 13 The court in Williams also found public policy weighed in favor of not imposing a duty on a cellular phone company for automobile accidents. Id. at 478-79. "Simply because an action may have some degree of
Id. The court further stated in Williams:
Id. at 479 (emphasis added). After balancing these three factors, the court in Williams concluded that Cingular owed no duty of care to the plaintiff because the plaintiff's "attenuated relationship with Cingular and the foregoing public policy considerations substantially outweigh any foreseeability of the harm at issue." Id.
¶ 14 A defendant's action that creates some foreseeability of danger does not necessarily impose a duty on that defendant for that action. Lowery, 2007 OK 38 at ¶ 19, 160 P.3d at 966 ("a showing that the defendant created a danger does not, per se, justify saying the defendant is negligent, particularly where the danger is sufficiently obvious."); Nicholson v. Tacker, 1973 OK 75, ¶ 11, 512 P.2d 156, 158 ("Just because the defendant has created a risk which harmed the plaintiff that does not mean that, in the absence of some duty to the plaintiff, the defendant will be held liable.") Instead, "a defendant owes a duty of care to the plaintiff who is foreseeably endangered by defendant's conduct with respect to all risks that make the conduct unreasonably dangerous." Lowery, 2007 OK 38 at ¶ 14, 160 P.3d at 964.
¶ 15 Plaintiff claims that Defendants "were negligent in that they failed to properly warn of the hazard of cell phone use while driving that created a reasonably foreseeable risk of an accident." Plaintiff also claims without reference to the record that "there is no reason to believe that [Hill] realized the dangerous circumstances created by engaging in cell phone use while driving without being forewarned."
¶ 16 The purchase and use of a cellular phone or cellular service are not inherently dangerous acts, nor is it foreseeable that the sale and subsequent use of such a phone would cause an accident. Even if using a cell phone while driving is foreseeable, it is not necessarily foreseeable that it will cause a collision or unreasonably endanger a particular class of persons. See generally Williams v. Cingular Wireless, 809 N.E.2d 473 (Ind. Ct.App.2004). It is not reasonable to anticipate injury every time a person uses a cellular phone while driving. As a result, we cannot conclude based on the record before us that Defendants' conduct created a foreseeable "zone of risk" giving rise to a duty on Defendants' part to protect Doyle from Hill's negligent driving and/or warn of the potential dangers associated with using a cell phone while driving.
¶ 17 Defendants also argue that Plaintiff cannot prove that any conduct of the Defendants
¶ 18 The occurrence giving rise to this lawsuit was tragic. We conclude, however, that Defendants owed Doyle no duty to protect her from the danger she encountered from Hill's decision to drive while distracted on a cell phone. After reviewing de novo the appellate record and relevant law, we find no basis which might lead a reasonably prudent person to conclude Defendants owed Doyle a duty of care. We affirm the trial court's order granting Defendants' motions to dismiss.
¶ 19 Because the facts as pled give rise to no duty to Doyle on the part of Defendants, we conclude the trial court correctly granted Defendants' motions to dismiss as a matter of law. Because we find Defendants owed no duty to Doyle, further issues raised by the parties will not be addressed.
FISCHER, P.J., and BARNES, J., concur.