ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
JOHN D. CLOUSE CATHERINE L. KYLE
IVAN A. ARNAEZ Ogletree Deakins Nash Smoak and
Evansville, Indiana Stewart, P.C.
COURT OF APPEALS OF INDIANA
TERRY L. WILLIAMS, )
vs. ) No. 82A01-0312-CV-476
CINGULAR WIRELESS, )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Mary Margaret Lloyd, Judge
Cause No. 82D03-0305-CT-2142
June 4, 2004
OPINION - FOR PUBLICATION
Terry Williams appeals the dismissal of her complaint against Cingular Wireless (Cingular) in
her suit for personal injuries she sustained in a car accident. We
The dispositive issue to our review of this appeal is whether Cingular owed
a duty to Williams. We also address whether Cingular is entitled to
appellate fees and costs.
On March 27, 2002, Williams was involved in an automobile accident with Kellie
Meagher. At the time of the collision, Meagher was allegedly using a
cellular phone furnished by Cingular.
On July 26, 2003, Williams filed an amended complaint against Meagher and Cingular.
With respect to Cingular, the complaint alleged:
That at the time of this collision the defendant Meagher was utilizing a
telephone furnished by Cingular Wireless. That Cingular Wireless was negligent in furnishing
a cellular phone to Meagher when it knew, or should have known, that
it would be used while the user operated a motor vehicle.
App. p. 6.
On September 2, 2003, Cingular filed a motion to dismiss on the grounds
that the complaint failed to state a valid claim for relief pursuant to
Indiana Trial Rule 12(B)(6). After conducting a hearing, the trial court granted
the motion to dismiss on October 10, 2003. Thereafter, Williams filed a
motion to defer rendering of judgment on October 15, 2003, to which Cingular
filed a response the following week. On October 22, 2003, the trial
court issued an order granting the motion to dismiss.
On November 10, 2003, Williams filed a motion to correct error on the
grounds that the trial court committed an error of law and that a
cartoon recently published in the local paper constituted newly discovered evidence in support
of her claim.See footnote The trial court denied the motion to correct error
and later denied the motion to defer rendering of judgment. The trial
court also denied Cingulars motion for attorney fees and costs. Williams now
This case comes to us upon the dismissal of Williams cause of action
for failing to state a claim for relief can be granted pursuant to
Trial Rule 12(B)(6). A Trial Rule 12(B)(6) motion tests the legal sufficiency
of a complaint, not the facts underlying the complaint.
Higgason v. State,
789 N.E.2d 22, 29 (Ind. Ct. App. 2003). Therefore, we view the complaint
in the light most favorable to the non-moving party, drawing every reasonable inference
in favor of this party, without looking at any evidence that may be
in the record. Baker v. Town of Middlebury, 753 N.E.2d 67, 70
(Ind. Ct. App. 2001), trans. denied. During our review, we stand in
the shoes of the trial court and determine whether the trial court misapplied
the law. Higgason, 789 N.E.2d at 29. The trial court properly grants
the motion to dismiss if it is apparent that the facts alleged in
the complaint are incapable of supporting relief under any set of circumstances.
Id. We sustain the trial courts ruling if we can affirm on
any basis found in the record. Id. Moreover, in making this
determination, we consider only the complaint and not any other evidence in the
record. Parks v. State, 789 N.E.2d 40, 46 (Ind. Ct. App. 2003),
Williams cause of action against Cingular sounds in negligence. In order to
prevail on a claim of negligence the plaintiff must show: (1) duty
owed to plaintiff by defendant; (2) breach of duty by allowing conduct
to fall below the applicable standard of care; and (3) compensable injury proximately
caused by defendants breach of duty. King v. Northeast Security, Inc., 790
N.E.2d 474, 484 (Ind. 2003).
Before reaching the questions of breach and injury, we must consider the threshold
matter of whether Cingular owed a duty to Williams. Absent a duty,
there can be no breach and, therefore, no recovery in negligence. Rawls
v. Marsh Supermarket, Inc., 802 N.E.2d 457, 459 (Ind. Ct. App. 2004).
Whether a defendant owes a duty of care to a plaintiff is a
question of law for the court to decide. Northern Indiana Public Service
Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003).
In cases in which the existence of a duty is not previously established,
such as the case before us, Indiana courts analyze three factors in determining
whether to impose a duty at common law: (1) the relationship between the
parties, (2) the reasonable foreseeability of harm to the person injured, and (3)
public policy concerns. Id. We consider each in turn.
A duty of reasonable care is not, of course, owed to the world
at large, but arises out of a relationship between the parties. Webb
v. Jarvis, 575 N.E.2d 992, 997 (Ind. 1991). Williams does not have
a direct relationship with Cingular. The only relationship alleged in the complaint
is that Cingular furnished a cellular phone to Meagher, who was later involved
in a car accident with Williams while using that phone. Williams was
not a customer of Cingular and was not a party to the transaction
between Cingular and Meagher. There is no contractual relationship between Cingular and
Williams. Furthermore, the accident did not involve a Cingular employee or vehicle
and did not occur on Cingular property. Likewise, the cellular phone itself
did not malfunction and cause Williams injury. Thus, we find no relationship
between Cingular and Williams that would create a duty on the part of
Cingular. See Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361 (Ind.
Ct. App. 2002) (finding insufficient relationship between a used-car dealership and the driver
of a car to impose duty for negligent repairs when the driver was
not the owner and had no contractual relationship with dealership), trans. denied.
The imposition of a duty is limited to those instances where a reasonably
foreseeable victim is injured by a reasonably foreseeable harm. Webb, 575 N.E.2d
at 997. In Goldsberry v. Grubbs, 672 N.E.2d 475 (Ind. Ct. App.
1996), trans. denied (1999), we distinguished between the foreseeability component of the duty
analysis and the foreseeability component of proximate cause as follows:
Foreseeability in the context of proximate cause involves evaluating the particular circumstances of
an incident after the incident occurs. According to the American Law Institute,
foreseeability for proximate cause purposes is determined from a perspective that is after
the event and looking back from the harm to the actors negligent conduct.
As stated in Indiana, [a] negligent act or omission is the
proximate cause of an injury if the injury is a natural and probable
consequence which, in light of the circumstances, should reasonably have been foreseen or
anticipated. Thus, when determining proximate cause, foreseeability is determined based on
hindsight, and accounts for the circumstances that actually occurred.
By logical deduction, the foreseeability component of the duty analysis must be something
different than the foreseeability component of proximate cause. More precisely, it must
be a lesser inquiry; if it was the same or a higher inquiry
it would eviscerate the proximate cause element of negligence altogether. If one
were required to meet the same or a higher burden of proving foreseeability
with respect to duty, then it would be unnecessary to prove foreseeability a
second time with respect to proximate cause. Additionally, proximate cause is normally
a factual question for the jury, while duty is usually a legal question
for the court. As a result, the foreseeability component of proximate cause
requires an evaluation of the facts of the actual occurrence, while the foreseeability
component of duty requires a more general analysis of the broad type of
plaintiff and harm involved, without regard to the facts of the actual occurrence.
Id. at 479 (citations and footnote omitted, alterations in original); see also Holt,
776 N.E.2d at 367.
Williams directs us to several states statutory schemes that have placed limitations on
drivers use of cellular phones while driving to demonstrate that the dangers of
using a cellular phone while driving are widely understood and, therefore, that the
accident was foreseeable.
See footnote Indeed, similar legislation has been proposed in the Indiana
General Assembly.See footnote As Cingular points out, however, none of these statutes
place liability with cellular phone makers and instead are directed at the drivers
The fact that states are beginning to limit the use of cellular phones
while driving does not answer the question of whether it is foreseeable that
the sale of a cellular phone will lead to a car accident.
Although we agree that it may be foreseeable that a person who is
using a cellular phone while driving might be in an accident, we do
not agree with the leap in logic Williams urges us to make that
it is likewise foreseeable to a legally significant extent that the sale of
the phone would result in an accident. A cellular phone does not
cause a driver to wreck a car. Rather, it is the drivers
inattention while using the phone that may cause an accident.
575 N.E.2d at 997 (declining to impose liability on a physician for prescribing
steroids to a patient on the grounds that it was not reasonably foreseeable
that the medication would cause patient to harm others). Drivers frequently use
cellular phones without causing accidents, and, of course, cellular phones are used in
all sorts of places other than in vehicles. We do not conclude
that there was a high degree of foreseeability that the sale of the
phone would result in an accident.
C. Public Policy
Duty is not sacrosanct in itself, but is only an expression of the
sum total of those considerations of public policy which lead the law to
say that the plaintiff is entitled to protection. Webb, 575 N.E.2d at
997. Various factors play into this policy consideration, including convenience of administration,
capacity of the parties to bear the loss, a policy of preventing future
injuries, and the moral blame attached to the wrongdoer. Ousley v. Board
of Commrs of Fulton County, 734 N.E.2d 290, 294 (Ind. Ct. App. 2000),
Simply because an action may have some degree of foreseeability does not make
it sound public policy to impose a duty. For example, many items
may be used by a person while driving, thus making the person less
attentive to driving. It is foreseeable to some extent that there will
be drivers who eat, apply make up, or look at a map while
driving and that some of those drivers will be involved in car accidents
because of the resulting distraction. However, it would be unreasonable to find
it sound public policy to impose a duty on the restaurant or cosmetic
manufacturer or map designer to prevent such accidents. It is the drivers
responsibility to drive with due care. Similarly, Cingular cannot control what people
do with the phones after they purchase them. To place a duty
on Cingular to stop selling cellular phones because they might be involved in
a car accident would be akin to making a car manufacturer stop selling
otherwise safe cars because the car might be negligently used in such a
way that it causes an accident.
Cellular phones are safely used in many different contexts every day. Indeed,
many drivers use cellular phones safely for personal and business calls, as well
as to report traffic emergencies. Encouraging drivers to report accidents, dangerous road
conditions, or other similar threats to authorities on their cellular phones is in
the publics interest.
Imposing a duty on Cingular and similar companies to prevent car accidents such
as the one in this case would effectively require the companies to stop
selling cellular phones entirely because the companies have no way of preventing customers
from using the phones while driving. Doing so would place a higher
burden on those companies than on other types of manufacturers or sellers of
products that might be distracting to drivers. Ultimately, sound public policy dictates
that the responsibility for negligent driving should fall on the driver. Legislation
has already been drafted to address the issue of cellular phone use while
driving and to place the responsibility on the driver to refrain from doing
so. We are confident that the legislature is taking appropriate measures to
protect public safety, and that is both its right and duty.
D. Balancing of Duty Factors
The relationship between Cingular and Williams is remote. Although it is foreseeable
that cellular phone use while driving may contribute to a car accident, it
is not foreseeable that the sale of a phone to a customer will
necessarily result in a car accident. Public policy weighs in favor of
not imposing a duty on cellular phone companies for car accidents, even if
cellular phones have the potential to distract drivers if misused.
Upon balancing the three factors mentioned in Webb, we conclude that Williams attenuated
relationship with Cingular and the foregoing public policy considerations substantially outweigh any foreseeability
of the harm at issue. Therefore, we must conclude that Cingular did
not owe a duty of care to Williams. See Holt, 776 N.E.2d
at 368. The trial court properly granted the motion to dismiss.
Cingular requests an award of fees and costs in defending this appeal.
Rule 66(E) of the Indiana Rules of Appellate Procedure provides in pertinent part,
[t]he Court may assess damages if an appeal . . . is frivolous
or in bad faith. Damages shall be in the Courts discretion and
may include attorneys fees. Our discretion to award attorney fees under Appellate
Rule 66(E) is limited, however, to instances when an appeal is permeated with
meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Orr v.
Turco Mfg. Co., 512 N.E.2d 151, 152 (Ind. 1987). Additionally, although Appellate
Rule 66(E) provides us with discretionary authority to award damages on appeal, we
must use extreme restraint when exercising this power because of the potential chilling
effect upon the exercise of the right to appeal. Thacker v. Wentzel,
797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Although Williams argument did
not carry the day, we decline Cingulars request.
The trial court did not err by granting Cingulars motion to dismiss for
failing to state a claim for which relief can be granted pursuant to
Trial Rule 12(b)(6). However, Cingular has not convinced us that Williams appeal
was frivolous, so we deny its motion for appellate costs and fees.
CRONE, J., and MATHIAS, J., concur.
Meagher is not a party to this appeal. For
purposes of discussion, we will assume that the use of the cellular phone
contributed to the accident.
Footnote: The cartoon depicted the character Blondie talking on her cellular
phone while driving and then causing an accident.
Footnote: Williams also cites various studies and commentary relating to the
dangers of driving while using a cellular phone. Because this is a
review of a Rule 12(b)(6) motion to dismiss, we will not consider evidence
outside the record and limit our review to the pleadings.
v. First Union Mortg. Co., 786 N.E.2d 279, 281 (Ind. Ct. App. 2003)
(stating that we look only to the complaint and may not resort to
any other evidence in the record in reviewing a motion to dismiss).
2004 Ind. Legis. Serv. SB 131, referred to Committee on Criminal
and Civil and Public Policy.