Filed 12/14/18             CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


BETHANY MODISETTE et al.,                          H044811
                                                  (Santa Clara County
        Plaintiffs and Appellants,                 Super. Ct. No. 16CV304364)

        v.

APPLE INC.,

        Defendant and Respondent.



        Bethany and James Modisette, along with their daughter Isabella, sued Apple Inc.
after they were seriously injured, and their daughter Moriah was killed, when a driver
using the FaceTime application on his iPhone crashed into their car on a Texas highway.
The trial court sustained Apple’s demurrer to the Modisettes’ first amended complaint
and dismissed the action. The Modisettes appeal from the judgment.
        We determine that the trial court properly sustained the demurrer without leave to
amend. Regarding the Modisettes’ negligence claims, we conclude that Apple did not
owe the Modisettes a duty of care. We also determine that the Modisettes cannot
establish that Apple’s design of the iPhone constituted a proximate cause of the injuries
they suffered, a necessary element of their remaining claims. Accordingly, we affirm the
judgment.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
       On December 24, 2014, Bethany, James, Isabella, and Moriah Modisette were
traveling in their family car on Interstate 35W in Denton County, Texas.1 Garrett
Wilhelm was also driving on the interstate, and, while driving, was using the FaceTime
application on his Apple iPhone 6 Plus. Traveling at highway speed, Wilhelm crashed
into the Modisettes’ car, which had stopped due to police activity. The accident caused
severe physical and emotional injuries to each of the Modisettes, and Moriah, aged five,
subsequently died at the hospital. Wilhelm told the police that he was using FaceTime at
the time of the crash. Police found Wilhelm’s iPhone at the scene with FaceTime still
activated.
       The Modisettes sued Apple Inc., which has its principal place of business in Santa
Clara County. The first amended complaint alleged causes of action for general and
gross negligence, negligent and strict products liability, negligent and intentional
infliction of emotional distress, loss of consortium, and public nuisance. The Modisettes
alleged that the car accident “occurred . . . when a driver, distracted while using the
‘FaceTime’ application on an Apple iPhone 6 Plus during operation of his motor vehicle,
collided at highway speed with [their] stationary motor vehicle and caused severe
physical and emotional injuries to [them],” and that Apple’s failure to design the iPhone
“to ‘lock out’ the ability of drivers to utilize the ‘FaceTime’ application on the Apple
iPhone while driving a motor vehicle, . . . resulted in the[ir] injuries.” The complaint
incorporated by reference the “body of studies and data that demonstrate the
compulsive/addictive nature of smartphone use.”
       The Modisettes alleged that Apple had wrongfully failed to implement in the
iPhone 6 Plus a safer alternative design that would have automatically prevented drivers
from utilizing FaceTime while driving at highway speed (lockout technology). The


       1
           The facts are taken from the first amended complaint.

                                              2
Modisettes also alleged that Apple had failed to warn users that the iPhone “was likely to
be dangerous when used or misused in a reasonably foreseeable manner.” The
Modisettes alleged that Apple “had a legal duty to . . . use due care in the design,
manufacture, and sale of its iPhone 6 Plus” and that Apple had “breached that duty by
failing to use reasonable care to design and manufacture [the phone] with the safer,
alternative ‘lock-out’ technology it had already developed to prevent the use of its pre-
installed ‘FaceTime’ application during a driver’s operation of a motor vehicle.”
       According to the first amended complaint, Apple applied for a patent for its
lockout technology in December 2008. The patent application stated that the technology
was designed to “ ‘disable the ability of a handheld computing device to perform certain
functions, such as texting, while one is driving.’ ” (Italics omitted.) The patent for the
lockout technology was issued to Apple in April 2014. Apple released the iPhone 6 Plus
on September 9, 2014. FaceTime was a “factory-installed, non-optional application[] on
the iPhone 6 Plus.”
       The Modisettes alleged that Apple knew or should have known of the risks caused
by the use of the iPhone while driving and quoted portions of Apple’s 2008 patent
application for the lockout technology. For example, the first amended complaint alleged
that Apple stated in the application that “ ‘[t]exting while driving has become a major
concern . . . . An April 2006 study found that 80 percent of auto accidents are caused by
distractions such as applying makeup, eating, and text messaging on handheld computing
devices.’ ” Attached as an exhibit to the first amended complaint was a notice of
proposed federal guidelines by the National Highway Traffic Safety Administration
issued on November 21, 2016. The proposed federal guidelines stated that driver
“distractions can come from electronic devices, such as navigation systems and
cell/smartphones, and from more conventional activities, such as viewing sights or events
external to the vehicle, interacting with passengers, and/or eating.” The proposed federal
guidelines included statistics on the prevalence of accidents in the United States

                                              3
involving distracted drivers from 2007-2014. For example, in 2013, there were 71,000
“distraction-affected non-fatal crashes involving the use of a cell phone,” which
constituted 8 percent of all distraction-affected non-fatal crashes and resulted in 34,000
people injured. That same year, there were 411 “distraction-affected fatal crashes
involving the use of a cell phone,” which constituted 14 percent of fatal “distraction-
affected crashes” and resulted in 455 fatalities. The proposed federal guidelines made
recommendations to “reduce the potential for unsafe driver distraction” from electronic
devices, but acknowledged that “it remains the driver’s responsibility to ensure the safe
operation of the vehicle and to comply with all state traffic laws. This includes, but is not
limited to laws that ban texting and/or use of hand-held devices while driving.”
       The trial court sustained Apple’s demurrer to the first amended complaint without
leave to amend and dismissed the action on May 8, 2017. The court found that “each
cause of action . . . fails, as a matter of law, to establish either the element of duty or of
causation.” The Modisettes timely appealed.
                                      II. DISCUSSION
       The Modisettes contend that the trial court erroneously found Apple did not owe
them a duty of care, asserting that the risk created by Apple’s failure to implement the
lockout technology was foreseeable and unreasonable. The Modisettes also argue that
the trial court inappropriately decided causation on demurrer, asserting that Apple’s
conduct and the resulting defect in Wilhelm’s phone combined with Wilhelm’s conduct
to cause the collision. The Modisettes seek to amend their complaint by adding
allegations that Apple recently implemented a design change that allows iPhone users to
block notifications while driving.
       We conclude that the Modisettes’ claims for general and gross negligence,
negligent products liability, negligent infliction of emotional distress, and public nuisance
fail because Apple did not owe the Modisettes a duty of care. We base this determination
on two considerations: first, the tenuous connection between the Modisettes’ injuries and

                                               4
Apple’s design of the iPhone 6 Plus without lockout technology; and, second, the burden
to Apple and corresponding consequences to the community that would flow from such a
duty. We also determine that the Modisettes’ claims for strict products liability,
intentional infliction of emotional distress, and loss of consortium fail for lack of
proximate cause.2 Accordingly, we affirm the judgment.
       A. Standard of Review
       “We review an order sustaining a demurrer de novo, exercising our independent
judgment as to whether a cause of action has been stated as a matter of law.” (Thompson
v. Ioane (2017) 11 Cal.App.5th 1180, 1190 (Thompson).) “Our only task in reviewing a
ruling on a demurrer is to determine whether the complaint states a cause of action.
Accordingly, we assume that the complaint’s properly pleaded material allegations are
true and give the complaint a reasonable interpretation by reading it as a whole and all its
parts in their context. We do not, however, assume the truth of contentions, deductions,
or conclusions of fact or law.”3 (Moore v. Regents of University of California (1990) 51
Cal.3d 120, 125 (Moore), internal citations omitted.) “We do not review the validity of
the trial court’s reasoning, and therefore will affirm its ruling if it was correct on any
theory.” (Thompson, supra, at p. 1190, internal citation and quotation marks omitted; see
also Carman v. Alvord (1982) 31 Cal.3d 318, 324.)




       2
          The first amended complaint included failure to warn allegations in its
negligence and product liability claims. The Modisettes do not appear to contest the trial
court’s dismissal of the failure to warn aspect of their claims as they do not raise the issue
here by providing either analysis or argument. (Associated Builders and Contractors,
Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.) Thus, any
appellate claim the Modisettes may have had arising from the failure to warn allegations
has been forfeited. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 793, fn. 2.)
        3
          We also accept facts appearing in exhibits to the complaint as true “and, if
contrary to the allegations in the pleading, . . . give[] [them] precedence.” (Stella v. Asset
Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191.)

                                               5
       B. Duty of Care
       “A plaintiff in any negligence suit must demonstrate a legal duty to use due care, a
breach of such legal duty, and [that] the breach [is] the proximate or legal cause of the
resulting injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142 (Kesner),
internal quotation marks omitted.) Duty is an essential element of the Modisettes’ claims
against Apple for general and gross negligence, negligent products liability, negligent
infliction of emotional distress, and public nuisance. (See Ibid. [negligence]; Chavez v.
24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [gross negligence]; Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 477-479 (Merrill) [negligent products liability];
Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 [negligent
infliction of emotional distress]; In re Firearm Cases (2005) 126 Cal.App.4th 959, 988
[public nuisance].) “[T]he existence of duty is a pure question of law.” (O’Neil v. Crane
Co. (2012) 53 Cal.4th 335, 363 (O’Neil).)
       “California law establishes the general duty of each person to exercise, in his or
her activities, reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)”4
(Kesner, supra, 1 Cal.5th at p. 1142, internal quotation marks omitted.) However,
“[c]ourts . . . invoke[ ] the concept of duty to limit generally the otherwise potentially
infinite liability which would follow from every negligent act . . . . The conclusion that a
defendant did not have a duty constitutes a determination by the court that public policy
concerns outweigh, for a particular category of cases, the broad principle enacted by the
Legislature that one’s failure to exercise ordinary care incurs liability for all the harms
that result.” (Kesner, supra, at p. 1143, internal citations and quotation marks omitted.)



       4
         Civil Code section 1714, subdivision (a) provides in relevant part: “Everyone is
responsible, not only for the result of his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary care or skill in the management of
his or her property or person, except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself.”

                                              6
“[I]n the absence of a statutory provision establishing an exception to the general rule of
Civil Code section 1714, courts should create one only where clearly supported by public
policy.” (Ibid., internal quotation marks omitted.) Court-crafted exceptions to the duty
rule are appropriate “when a court can promulgate relatively clear, categorical, bright-line
rules of law applicable to a general class of cases.” (Id. at pp. 1143-1144, internal
quotation marks omitted.) Whether a duty exists does not depend on the facts of a
particular case; instead, “analysis of duty occurs at a higher level of generality.” (Id. at p.
1144.)
         In Rowland v. Christian, the California Supreme Court articulated the factors to be
considered when determining whether public policy supports the creation of an exception
to the statutory presumption of duty set forth in Civil Code section 1714.5 (Rowland v.
Christian (1968) 69 Cal.2d 108, 112-113 (Rowland).) The central factors identified by
Rowland are “the foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the defendant’s conduct
and the injury suffered, the moral blame attached to the defendant’s conduct, the policy
of preventing future harm, the extent of the burden to the defendant and consequences to
the community of imposing a duty to exercise care with resulting liability for breach, and
the availability, cost, and prevalence of insurance for the risk involved.” (Id. at p. 113.)
         The Modisettes alleged that Apple knew or should have known of the risk of harm
created by the use of an iPhone while driving and supported that allegation by quoting
portions of Apple’s 2008 patent application for its lockout technology. The patent
application stated that “ ‘[t]exting while driving has become a major concern,’ ” and
noted that “ ‘[a]n April 2006 study found that 80 percent of auto accidents are caused by
distractions such as applying makeup, eating, and text messaging on handheld computing
devices.’ ” The proposed federal guidelines attached as an exhibit to the first amended


         5
             All further statutory references are to the Civil Code unless otherwise indicated.

                                                 7
complaint included statistics about the prevalence of “distraction-affected crashes”
involving the use of a cell phone that occurred in the United States from 2007-2014.
       Accepting the Modisettes’ non-conclusory allegations as true, we determine that
Rowland’s foreseeability factor weighs in favor of imposing a duty of care on Apple
because “the category of negligent conduct at issue is sufficiently likely to result in the
kind of harm experienced . . . .” (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6.)
However, even if it were foreseeable that cell-phone use by drivers would result in
accidents, “foreseeability is not synonymous with duty; nor is it a substitute.” (O’Neil,
supra, 53 Cal.4th at p. 364.) “[T]here are numerous circumstances . . . in which a given
injury may be ‘foreseeable’ in the fact-specific sense in which we allow juries to consider
that question, but . . . the ‘foreseeability’ examination called for under a duty analysis
pursuant to [Rowland] is a very different normative inquiry.” (Parsons v. Crown
Disposal Co. (1997) 15 Cal.4th 456, 476 (Parsons).) As explained further below, we
ultimately conclude that this normative inquiry supports finding an exception to the
default duty of care set out in section 1714.
       We agree with the Modisettes that some of the other Rowland factors also weigh
in favor of finding a duty on the part of Apple,6 including the certainty that the
Modisettes suffered injury,7 the policy of preventing future harm, and “moral blame.”8


       6
          Neither party discusses the prevalence of insurance in this context nor is
insurance referenced in the first amended complaint. For this reason, we do not
incorporate this consideration in our analysis.
        7
          The certainty of injury factor “has been noted primarily, if not exclusively, when
the only claimed injury is an intangible harm such as emotional distress.” (Kesner supra,
1 Cal.5th at p. 1148, internal quotation marks omitted.) As the Modisettes’ claims
concern potential injuries suffered in car accidents, and in light of the severe injuries they
actually suffered in this case, their injuries are certain and compensable.
        8
          Courts have relied on moral blame to find a duty “in instances where the
plaintiffs are particularly powerless or unsophisticated compared to the defendants or
where the defendants exercised greater control over the risks at issue.” (Kesner, supra, 1
Cal.5th at p. 1151.)

                                                8
       Nevertheless, the remaining Rowland factors weigh more strongly against a
finding of duty. In particular, we conclude, first, that there was not a “close” connection
between Apple’s conduct and the Modisettes’ injuries and, second, that “the extent of the
burden to [Apple] and consequences to the community of imposing a duty to exercise
care with resulting liability for breach” would be too great if a duty were recognized.
(Rowland, supra, 69 Cal.2d at p. 113.)
       Turning to the Rowland factor examining “the closeness of the connection
between the defendant’s conduct and the injury suffered” (Kesner, supra, 1 Cal.5th at p.
1148, internal quotation marks omitted), we agree with the Modisettes that the
involvement of a third party (the driver Wilhelm) in the accident does not, standing alone,
preclude a duty of care on the part of Apple. “[O]ne’s general duty to exercise due care
includes the duty not to place another person in a situation in which the other person is
exposed to an unreasonable risk of harm through the reasonably foreseeable conduct
(including the reasonably foreseeable negligent conduct) of a third person.” (Ibid.,
internal quotation marks omitted) However, we find unpersuasive the Modisettes’
contention that case law examining third-party conduct supports such a duty here given
the tenuous connection between Apple’s design of the iPhone and the Modisettes’
injuries.
       In cases where courts have found a sufficiently close connection to warrant the
recognition of a duty of care notwithstanding the involvement of a third party, the
relationship between the defendant’s actions and the resulting harm was much more
direct. For example, in Kesner, supra, 1 Cal.5th at page 1141, the plaintiffs were family
members and current or former cohabitants of workers exposed to asbestos at defendants’
workplaces. The plaintiffs contracted cancer from their exposure to asbestos particles
that were carried home on the workers’ clothing and other possessions. (Ibid.) The court
found that the defendants’ “failure to control the movement of asbestos fibers” and to
“mitigate known risks associated with the use of asbestos” created a foreseeable risk of

                                             9
harm to plaintiffs and that there was a close connection between the defendants’ conduct
and the harm. (Id. at pp. 1145-1146, 1148-1149.) “An employee’s role as a vector in
bringing asbestos fibers into his or her home is derived from the employer’s or property
owner’s failure to control or limit exposure in the workplace.” (Id. at p. 1148.)
However, the court recognized the limits of the duty owed. The court held that the
employers’ duty extended “only to members of a worker’s household, i.e., persons who
live with the worker and are thus foreseeably in close and sustained contact with the
worker over a significant period of time.” (Id. at p. 1154.) The court, by contrast, found
no duty by the employers toward others who may have come into contact with employees
carrying asbestos fibers on their person. (Id. at p. 1155.)
       In Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 708, a police officer
motioned a speeding motorist to stop in the center median of a highway. The passengers
in the stopped car were then seriously injured when the vehicle was hit by a third party.
(Id. at p. 709.) The court held that “a law enforcement officer, in directing a traffic
violator to stop in a particular location, has a legal duty to use reasonable care for the
safety of the persons in the stopped vehicle and to exercise his or her authority in a
manner that does not expose such persons to an unreasonable risk of harm.” (Id. at
p. 707.) The court emphasized that the negligence claim was based on the particular
conduct of the officer: “[The officer’s] affirmative conduct itself, in directing [the driver]
to stop the Camry in the center median of the freeway, placed plaintiffs in a dangerous
position and created a serious risk of harm to which they otherwise would not have been
exposed.” (Id. at pp. 716-717.)
       In both of those cases, the defendants’ conduct, whether it was the unsafe use of
asbestos in Kesner or the stopping of a motorist in the center median in Lugtu, directly
put the plaintiffs in danger; the plaintiffs’ harm was closely tied to the defendants’
actions. Apple’s design of the iPhone, in contrast, simply made Wilhelm’s use of the
phone while driving possible, as does the creator of any product (such as a map, a radio, a

                                              10
hot cup of coffee, or makeup) that could foreseeably distract a driver using the product
while driving.
       Unlike the conduct in Kesner and Lugtu, Apple’s design of the iPhone did not put
the danger in play. The Modisettes’ assertion in their opening brief that “Wilhelm’s role
and conduct as a distracted driver is derivative of, and thus closely connected to, Apple’s
failure to take appropriate steps to at least limit the ability of its iPhone to create and
enable such distractions” only highlights the attenuation between Apple’s design of the
iPhone and the Modisettes’ injuries. This attenuation significantly weakens their claim of
duty on the part of Apple. (See Wawanesa Mut. Ins. Co. v. Matlock (1997) 60
Cal.App.4th 583, 588-589 (Matlock) [“the concatenation between [defendant’s] initial act
of giving [minor] a packet of cigarettes and the later fire is simply too attenuated to show
the fire was reasonably within the scope of the risk created by the initial act”].)
       For the Modisettes to be injured, they had to stop on a highway due to police
activity; Wilhelm had to choose to use his iPhone while driving in a manner that caused
him to fail to see that the Modisettes had stopped; and Wilhelm had to hit the Modisettes’
car with his car, an object heavy enough to cause the Modisettes’ severe injuries. It was
Wilhelm’s conduct of utilizing FaceTime while driving at highway speed that directly
placed the Modisettes in danger. Nothing that Apple did induced Wilhelm’s reckless
driving.9
       The Modisettes employ the principles articulated in Kesner to try to demonstrate a
sufficiently close connection between Apple’s conduct and their harm, arguing that “[i]t
is of no legal consequence that it was [a third party] who collided with [them].” The


       9
         The first amended complaint includes allegations regarding teenagers’ use of cell
phones while driving and references a number of studies involving smartphone addiction
among young adults and young drivers. The first amended complaint does not include
Wilhelm’s age at the time of the crash. Thus, we conclude that these allegations are not
relevant to our analysis. Even if the complaint did allege Wilhelm’s age, the allegations
would not change our duty analysis. (See e.g., Matlock, supra, 60 Cal.App.4th at p. 589.)

                                               11
Modisettes highlight Kesner’s characterization of “the gravamen of plaintiffs’ claims”
there as the “defendants[’] fail[ure] to mitigate known risks associated with the use of
asbestos,” and quote the court’s determinations that “[i]ncreased risk of mesothelioma is
a characteristic harm that makes the use of asbestos-containing materials unreasonably
dangerous in the absence of protective measures” and that “[a]n employee’s return home
at the end of the workday is not an unusual occurrence, but rather a baseline assumption
that can be made about employees’ behavior” (Kesner, supra, 1 Cal.5th at p. 1149), to
draw an analogy here. However, it was the defendants’ own use of asbestos in Kesner
that created the risk of harm (id. at p. 1140), which is necessarily a closer connection
between conduct and harm than Apple’s design of the iPhone and the Modisettes’ injuries
(see Bailey v. Estate of Carroll Jett (W.D.N.C., Jan. 31, 2011, Civ. No. 1:110cv144)
2011 WL 336133, *4 [“simply placing a product in the stream of commerce, without
more, is insufficient to create a legal duty on the part of a seller”]).10 Nor are we willing
to make “a baseline assumption” that iPhone owners will ordinarily use their phones in a
dangerous manner while driving. (Kesner, supra, at p. 1149; see Estate of Doyle v.
Sprint/Nextel Corporation (2010) 248 P.3d 947, 951 [“It is not reasonable to anticipate
injury every time a person uses a cellular phone while driving.”].)
       Lompoc Unified School Dist. v. Superior Court (1993) 20 Cal.App.4th 1688
(Lompoc Unified) is instructive. There, the plaintiff bicycle rider was injured by a
motorist who struck him when she became distracted by athletic events occurring on
property bordering the roadway, and the plaintiff sued the landowner. (Id. at p. 1691.)
The court disagreed with the plaintiff’s contention that an occupier of real property owed
a duty of care not to conduct activities that would distract passing motorists. (Id. at p.
1694.) “[T]he occupier has no liability for injuries caused by the motorist who is not

       10
         The California Rules of Court do not restrict citation to unpublished federal
opinions. (See Cal. Rules of Court, rule 8.1115; Farm Raised Salmon Cases (2008) 42
Cal.4th 1077, 1096, fn. 18.)

                                              12
paying attention to where he or she is going. Rather, it is the motorist who has the duty
to exercise reasonable care at all times, to be alert to potential dangers, and to not permit
his or her attention to be so distracted by an interesting sight that such would interfere
with the safe operation of a motor vehicle.” (Ibid.)
       The Modisettes argue that Lompoc Unified is distinguishable because it was based
on a limitation to a property occupier’s “duty to exercise ordinary care in the use and
management of his or her land,” which does not “[n]ormally . . . extend to persons
outside the land, e.g., on adjacent land or on the highway.” (Lompoc Unified, supra, 20
Cal.App.4th at p. 1693.) While we agree that Lompoc Unified recognized that limitation,
its holding was premised on case law from other jurisdictions determining that “an
occupier has no legal duty to provide a distraction barrier to prevent passing motorists
from seeing or hearing what is occurring upon the land” because it is the motorist’s “duty
to exercise reasonable care at all times . . . .” (Id. at p. 1694.) Lompoc Unified
“adopt[ed] these holdings as the rule in California.” (Ibid.)
       In addition to concluding that the connection between the Modisettes’ injuries and
Apple’s design of the iPhone weighs against a duty of care on the part of Apple, we
determine that the burden a contrary conclusion would place upon cell-phone
manufacturers and the consequences to the community strongly militate toward finding
that Apple had no duty to the Modisettes even if their injuries were foreseeable. “A duty
of care will not be held to exist even as to foreseeable injuries . . . where the social utility
of the activity concerned is so great, and avoidance of the injuries so burdensome to
society, as to outweigh the compensatory and cost-internalization values of negligence
liability.” (Kesner, supra, 1 Cal.5th at p. 1150, internal quotation marks omitted.) A
foreseeable harm does not “ ‘standing alone’[ ] impose . . . a duty to guard against
injuries to [a] plaintiff.” (Parsons, supra, 15 Cal.4th at p. 476.) “As we have observed,
social policy must at some point intervene to delimit liability even for foreseeable
injury.” (Ibid., internal quotation marks omitted.)

                                               13
        A court will craft an exception to the duty of care even for foreseeable harms if
“allowing the possibility of liability would result in such significant social burdens that
the law should not recognize such claims.” (Kesner, supra, 1 Cal.5th at p. 1144.) “[A]ny
duty rule will necessarily exclude some individuals who, as a causal matter, were harmed
by the conduct of potential defendants.” (Id. at p. 1155.) Although we determine based
on the allegations in the first amended complaint that it was foreseeable that Apple’s
design of the iPhone 6 Plus without the lockout technology could result in a car accident,
we conclude that strong public policy considerations dictate against recognizing a duty of
care.
        Whether cell-phone manufacturers have a duty to design cell phones in a manner
that applications like FaceTime cannot be accessed while users are driving appears to be
an issue of first impression in California, but courts in other jurisdictions facing similar
issues have determined there to be no duty of care. For example, in Williams v. Cingular
Wireless (2004) 809 N.E.2d 473, 475, 478, which involved a negligence suit against a
company that furnished a cell phone to a driver who was using the phone when a
collision occurred, the court determined that it would “not make sound public policy to
impose a duty” even though cell-phone use by a driver has “some degree of
foreseeability . . . .” The court explained that although “[i]t 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 . . . , 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 driver’s responsibility to drive with due care.” (Id. at p. 478.) The court observed
that “[t]o place a duty on [the seller] 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.” (Ibid.; see also Durkee v. C.H. Robinson Worldwide, Inc. (2011) 765

                                              14
F.Supp.2d 742, 749 [declining to find in-truck texting-system manufacturer had duty to
design system to block texts unless truck was stopped, in part because “no product that
would potentially distract a driver could be marketed”].)
       In addition to cases from other jurisdictions, we look to public policy in
California, as articulated in legislation and similar statements of public policy. While
courts have reasoned that “internalizing the cost of injuries caused by a particular
behavior will induce changes in that behavior to make it safer,” they have also recognized
“[t]hat [such a] consideration may be outweighed, for a category of negligent conduct, by
laws or mores indicating approval of the conduct . . . .” (Kesner, supra, 1 Cal.5th at p.
1150.) In Kesner, the Supreme Court’s finding of duty on the part of employers to
cohabitants of individuals who had suffered longtime, repeated exposure to asbestos
relied in part upon “a strong public policy limiting or forbidding the use of asbestos.”
(Id. at p. 1151.)
       The legal landscape with respect to the use of cell phones is distinctly different.
“There are 396 million cell phone service accounts in the United States—for a Nation of
326 million people.” (Carpenter v. U.S. (2018) __ U.S. __ [138 S.Ct. 2206, 2211, 201
L.Ed.2d 507] (Carpenter).) The United States Supreme Court has described cell phones
as “such a pervasive and insistent part of daily life that the proverbial visitor from Mars
might conclude they were an important feature of human anatomy.” (Riley v. California
(2014) __ U.S. __ [134 S.Ct. 2473, 2484, 189 L.Ed.2d 430].) It is not only foreseeable
that millions of people will have their cell phones in their cars—it is almost a certainty.
“[N]early three-quarters of smart phone users report being within five feet of their phones
most of the time”; “[i]ndividuals . . . compulsively carry cell phones with them all the
time. A cell phone faithfully follows its owner beyond public thoroughfares and into
private residences, doctor’s offices, political headquarters, and other potentially revealing
locales.” (Carpenter, supra, 138 S.Ct. at p. 2218, internal citation and quotation marks
omitted.)

                                             15
       With respect to the use of cell phones while driving, the Legislature has elected
not to ban all cell-phone use by drivers in California, choosing to allow cell-phone use
while driving that is “voice-operated” and “hands-free.” (Veh. Code, §§ 23123, subd.
(a), 23123.5, subd. (a).) It has also permitted drivers to use non-voice-operated, non-
hands-free cell phones “for emergency purposes” (Veh. Code, § 23123, subd. (c)), and to
use them when the phone “is mounted on a vehicle’s windshield . . . or . . . a vehicle’s
dashboard” and the driver can “activate or deactivate a feature or function” of the phone
“with the motion of a single swipe or tap of the driver’s finger” (Veh. Code, § 23123.5,
subd. (c)(1)-(2); see also id. at subd. (b) [exempting “manufacturer-installed
systems . . . embedded in the vehicle”]).11 California statutes, therefore, indicate the
Legislature’s approval of certain cell-phone use by drivers and its seeming recognition
that “[c]ellular 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 public’s
interest.” (Williams, supra, 809 N.E.2d at p. 479.)
       These expressions of public policy are significant because the proper focus for
“duty analysis is forward-looking, and the most relevant burden is the cost to the
defendants of upholding, not violating, the duty of ordinary care.” (Kesner, supra, 1
Cal.5th at p. 1152.) “[W]hen addressing conduct on the part of a defendant that is
‘deliberative, and . . . undertaken to promote a chosen goal, . . . [c]hief among the factors
which must be considered is the social value of the interest which the actor is seeking to
advance.’ ” (Parsons, supra, 15 Cal.4th at p. 473, italics omitted.) The Modisettes’
complaint alleges a duty that, at its core, may preclude cellular-phone manufacturers from


       11
         Texas laws are even more permissive. (See Tex. Transportation Code, §§
545.425, 545.4251.)

                                              16
allowing the use of phones while driving, notwithstanding California law that expressly
permits such uses under certain circumstances.
       The Modisettes urge us to distinguish smartphones like the iPhone from other
products that motorists may use while driving based upon the “body of studies and data
that demonstrative the compulsive/addictive nature of smartphone use.” Even accepting
this contention as true, it does not persuade us.12 All of the studies cited by the
Modisettes in their complaint were published prior to or in 2016. In 2016, the California
Legislature added a provision to the Vehicle Code that allows a driver to “activate or
deactivate a feature or function of the handheld wireless telephone or wireless
communications device with the motion of a single swipe or tap of the driver’s finger”
while the “driver is operating the vehicle.” (Vehicle Code, § 23123.5, subd. (c)(2), added
by Stats. 2016, ch. 660, § 2.) By referencing a “swipe or tap” (ibid.), the statute
implicitly approves accessing smartphones while driving under some circumstances.13
The Modisettes’ complaint does not allege that Apple designed the iPhone to be
particularly addictive to drivers compared to other smartphones, and the Legislature has
rejected the Modisettes’ implicit argument that smartphones may never be used safely by
drivers.



       12
           At oral argument, Apple stated that, given the procedural posture of this case,
we should accept as true the contention that smartphones are addictive. Absent this
concession, we may have considered the Modisettes’ contention that “[a]n iPhone
operates on a Variable Ratio Schedule of Reinforcement, similar to a slot machine,” to
fall within the category of “contentions, deductions, or conclusions of fact or law” that
we do not accept as true for review of an order sustaining a demurrer. (Moore, supra, 51
Cal.3d at p. 125.)
        13
           The statute also requires that “[t]he handheld wireless telephone or electronic
wireless communications device is mounted on a vehicle’s windshield in the same
manner a portable Global Positioning System (GPS) is mounted pursuant to paragraph
(12) of subdivision (b) of Section 26708 or is mounted on or affixed to a vehicle’s
dashboard or center console in a manner that does not hinder the driver’s view of the
road.” (Veh. Code, § 23123.5, subd. (c)(1).)

                                             17
       The facts and documents cited by the Modisettes about “distracted driving”
confirm how broadly they construe the scope of the duty owed to them by Apple.
Essentially, the Modisettes argue that cell-phone manufacturers owe a duty to all
individuals injured by drivers who were distracted by using the phones while driving if
the cell-phone manufacturer had available the technology to disable use of the phone
while the user is driving. Notwithstanding the broad brush of section 1714, we are not
persuaded that California law imposes a duty on the manufacturer of a cell phone to
design it in such a manner that a user is incapable of using it while driving. Given the
complex public policy considerations involved in such a calculus, and the potentially
sweeping implications of finding a duty by Apple here, we conclude that policy
considerations dictate finding as a matter of law an exception to the general duty of care.
We also observe that our conclusion constitutes a clear, bright-line rule applicable to a
general class of cases that the Supreme Court has described as appropriate for a court-
created exception to the general duty of care. (Kesner, supra, 1 Cal.5th at p. 1144.)
       The facts in this case are tragic. We have great sympathy for the Modisettes, who
suffered severe injuries through no apparent fault of their own. Nevertheless, for the
reasons stated above, we conclude that Apple owed no duty of care to the Modisettes to
design the iPhone 6 Plus with lockout technology. The trial court properly sustained
Apple’s demurrer to the negligence-based claims for the injuries the Modisettes suffered
in the car accident with Wilhelm.




                                             18
       C. Proximate Causation
       The Modisettes’ claims against Apple for strict products liability, intentional
infliction of emotional distress, and loss of consortium do not require a showing that
Apple owed the Modisettes a duty of care, but they do contain the necessary element of
causation. (See Merrill, supra, 26 Cal.4th at p. 479 [strict products liability]; Hughes v.
Pair (2009) 46 Cal.4th 1035, 1050 [intentional infliction of emotional distress]; LeFiell
Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284-285 [loss of
consortium].) We conclude that the tenuous connection between Apple’s conduct and the
Modisettes’ injuries bars a finding of proximate causation.
       “Traditionally, the law has asked whether defendant’s conduct was the
‘proximate’ cause of injury.” (Jackson v. Ryder Truck Rental, Inc. (1993) 16
Cal.App.4th 1830, 1847.) “Ordinarily, proximate cause is a question of fact which
cannot be decided as a matter of law from the allegations of a complaint. . . .
Nevertheless, where the facts are such that the only reasonable conclusion is an absence
of causation, the question is one of law, not of fact.” (State Dept. of State Hospitals v.
Superior Court (2015) 61 Cal.4th 339, 353 (State Hospitals), internal quotation marks
omitted.)
       “[P]roximate cause has two aspects. One is cause in fact. An act is a cause in fact
if it is a necessary antecedent of an event. This is sometimes referred to as but-for
causation.” (State Hospitals, supra, 61 Cal.4th at p. 352, citation and internal quotation
marks omitted.) To establish but-for causation, the plaintiff must “introduce evidence
which affords a reasonable basis for the conclusion that it is more likely than not that the
conduct of the defendant was a cause in fact of [plaintiff’s harm].”14 (Viner v. Sweet
(2003) 30 Cal.4th 1232, 1243 (Viner), internal quotation marks omitted.)

       14
         The parties argue whether Apple’s conduct was a “substantial factor” in causing
the Modisettes’ injuries. The California Supreme Court has recently stated, however, that
the substantial factor test applies “where concurrent independent causes contribute to an

                                             19
       The first amended complaint alleged that the accident “occurred . . . when a driver,
distracted while using the ‘FaceTime’ application on an Apple iPhone 6 Plus during
operation of his motor vehicle, collided at highway speed with [the Modisettes’]
stationary motor vehicle and caused severe physical and emotional injuries to [them],”
and that Apple’s failure to design the iPhone “to ‘lock out’ the ability of drivers to utilize
the ‘FaceTime’ application . . . while driving a motor vehicle, . . . resulted in the[ir]
injuries.” Taking the Modisettes’ properly pleaded allegations as true, it appears to us
that the first amended complaint pleaded facts sufficient to establish that Apple’s design
of the iPhone 6 Plus without its patented lockout technology was a cause in fact of the
Modisettes’ injuries because it was “a necessary antecedent” of the accident. (State
Hospitals, supra, 61 Cal.4th at p. 352.)
        “To simply say, however, that the defendant’s conduct was a necessary
antecedent of the injury does not resolve the question of whether the defendant should be
liable.” (PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315 (PPG
Industries).) As with the test for duty in negligence actions, “[t]he second aspect of
proximate cause focuses on public policy considerations. Because the purported [factual]
causes of an event may be traced back to the dawn of humanity, the law has imposed
additional limitations on liability other than simple causality. These additional
limitations are related not only to the degree of connection between the conduct and the
injury, but also with public policy. Thus, proximate cause is ordinarily concerned, not
with the fact of causation, but with the various considerations of policy that limit an
actor’s responsibility for the consequences of his conduct.” (State Hospitals, supra, 61


injury.” (State Hospitals, supra, 61 Cal.4th at p. 352, fn. 12.) Concurrent independent
causes “are multiple forces operating at the same time and independently, each of which
would have been sufficient by itself to bring about the harm.” (Viner, supra, 30 Cal.4th
at p. 1240.) Because this case does not involve concurrent independent causes, “the ‘but
for’ test governs questions of factual causation.” (State Hospitals, supra, at p. 352, fn.
12; see also Viner, supra, at pp. 1239-1241.)

                                              20
Cal.4th at p. 353, internal citations and quotation marks omitted; see also Romito v. Red
Plastic Co. (1995) 38 Cal.App.4th 59, 69-70.) Both Witkin and the Restatement of Torts
frame this aspect of proximate cause as “scope of liability.” (6 Witkin, Summary of Cal.
Law (11th ed. 2017) Torts, §§ 1331, 1336; Rest.3d Torts, § 29.) The extent or scope of a
defendant’s liability is a question of law. (Mosley v. Arden Farms Co. (1945) 26 Cal.2d
213, 222 (Mosley) (conc. opn. of Traynor, J.); see also PPG Industries, supra, at pp. 315-
316.)
        “As a matter of practical necessity, legal responsibility must be limited to those
causes which are so close to the result, or of such significance as causes, that the law is
justified in making the defendant pay.” (Kumaraperu v. Feldsted (2015) 237 Cal.App.4th
60, 68 (Kumaraperu), internal quotation marks omitted.) Although Apple’s manufacture
of the iPhone 6 Plus without the lockout technology was a necessary antecedent of the
Modisettes’ injuries (as was the police activity that slowed traffic on the interstate that
day), those injuries were not a result of Apple’s conduct. Rather, Wilhelm caused the
Modisettes’ injuries when he crashed into their car while he willingly diverted his
attention from the highway. (See Durkee, supra, 765 F.Supp.2d at p. 750 [“[t]he alleged
accident in this case was caused by the driver’s inattention, not any element of the design
or manufacture of the [in-truck texting] system that has been alleged”].) In a similar case
in Texas, the trial court concluded that “a real risk of injury did not materialize until [the
driver] neglected her duty to safely operate her vehicle by diverting her attention from the
roadway. In that sense, Apple’s failure to configure the iPhone to automatically disable
did nothing more than create the condition that made Plaintiffs’ injuries possible.
Because the circumstances here are not ‘such that reasonable jurors would identify [the
iPhone or Apple’s conduct] as being actually responsible for the ultimate harm’ to
Plaintiffs, the iPhone and Apple’s conduct are too remotely connected with Plaintiffs’




                                              21
injuries to constitute their legal cause.” (Meador v. Apple, Inc. (E.D.Tex., Aug. 16, 2016,
No. 6:15-CV-715) 2016 WL 7665863, *4.)15
       Disputing this analysis, the Modisettes assert that their “allegations are more than
sufficient for a reasonable person to consider Apple a cause of the injury,” and argue that
the trial court’s determination that the connection between Apple’s conduct and their
injuries was too “ ‘attenuated’ ” to state a cause of action “disregard[ed] the principles of
comparative fault and usurp[ed] the jury’s role in determining causation and comparative
liability.” We disagree that a reasonable person would consider Apple a cause of the
accident here (see, e.g., Durkee, supra, 765 F.Supp.2d at p. 750), and the Modisettes do
not point us to a single case involving similar facts suggesting otherwise. Moreover,
while we acknowledge that but-for causation has been sufficiently alleged, the scope of
Apple’s liability is question of law. (Mosley, supra, 26 Cal.2d at p. 222 (conc. opn. of
Traynor, J.).) That juries determine comparative liability in cases involving more than
one tortfeasor does not foreclose this court’s role in deciding whether it is just to hold a
defendant liable for an injury in the first instance. (See State Hosp., supra, 61 Cal.4th at
p. 353; PPG Industries, supra, 20 Cal.4th at pp. 315-316; 6 Witkin, Summary of Cal.
Law, supra, § 1331.)
       The Modisettes also contend that product misuse “is an affirmative defense for
which Apple bears the burden of proof.” Although we agree that product misuse is an
affirmative defense, it bears on whether a third party’s misuse of a product was the
“superseding cause of injury that absolves a tortfeasor of his or her own wrongful
conduct [because] the misuse was so highly extraordinary as to be unforeseeable.”



       15
         Our proximate causation analysis echoes our consideration of the closeness of
the connection between Apple’s conduct and the Modisettes’ harm in the duty of care
determination because causation and duty are interrelated. (See Kumaraperu, supra, 237
Cal.App.4th at p. 69; Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 781 & fn. 2;
Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 664.)

                                              22
(Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1308.) We do not conclude here
that Wilhelm’s use of the iPhone while driving was unforeseeable. Rather, we determine
that the gap between Apple’s design of the iPhone and the Modisettes’ injuries is too
great for the tort system to hold Apple responsible. (See State Hospitals, supra, 61
Cal.4th at pp. 355-357.)
       D. Leave to Amend
       When a trial court sustains a demurrer without leave to amend, “we must decide
whether there is a reasonable possibility the plaintiff could cure the defect with an
amendment. If we find that an amendment could cure the defect, we conclude that the
trial court abused its discretion and we reverse; if not, no abuse of discretion has
occurred. The plaintiff has the burden of proving that an amendment would cure the
defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, internal
citations omitted.) The “order sustaining a demurrer without leave to amend is
reviewable for abuse of discretion ‘even though no request to amend [the] pleading was
made.’ (Code Civ. Proc., § 472c, subd. (a).)”16 (Performance Plastering v. Richmond
American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 667-668.)
       The Modisettes argue that “Apple’s recent implementation of its ‘Do Not Disturb
While Driving’ technology” on iPhones further establishes “a causative relationship
between [their] harm, Apple’s conduct, and the alleged defects in Apple’s iPhone [6
Plus],” and that they should be allowed to amend their complaint to allege facts related to
that recent implementation. According to the Modisettes, the “Do Not Disturb While
Driving” feature allows iPhone users “to limit the capability of drivers to text or receive




       16
        The Modisettes requested general leave to amend in their opposition to Apple’s
demurrer.

                                             23
FaceTime requests.”17 The Modisettes ask us to take judicial notice of this recent design
change to the iPhone, which occurred “in or around June 2017.”
       This court may take judicial notice of any matter specified in Evidence Code
section 452, including “[f]acts and propositions that are not reasonably subject to dispute
and are capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” (Evid. Code, §§ 452, subd. (h), 459.) In addition, on
review of a demurrer, this court “may consider other relevant matters of which the trial
court could have taken judicial notice and we may treat such matters as having been
pleaded.” (Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 538.)
       We do not agree that an amendment to the complaint alleging that Apple recently
implemented “Do Not Disturb While Driving” technology in iPhones gives rise to a
reasonable possibility that the Modisettes can establish either a duty of care or proximate
cause. The Modisettes alleged in the first amended complaint that Apple had the
technology to automatically prevent drivers from utilizing FaceTime while driving when
it manufactured the iPhone 6 Plus, an allegation that we have accepted as true. (See
Moore, supra, 51 Cal.3d at p. 125.) The implementation of similar technology does not
render the connection between Apple’s conduct and the Modisettes’ injuries less remote,
nor does it alleviate any of the policy concerns addressed above. Therefore, we decline
to take judicial notice of the recent design change because it is not relevant to our
determination. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998)
18 Cal.4th 739, 748, fn. 6.) We conclude that the trial did not abuse its discretion when it
sustained the demurrer without leave to amend.




       17
          According to the Apple support pamphlet attached as an exhibit to the request
for judicial notice, the technology, when activated by an iPhone user, prevents certain
notifications from being “delivered” while the user is driving so that the phone “stays
silent and the screen stays dark.”

                                             24
                           III. DISPOSITION
The judgment is affirmed. Apple is entitled to costs on appeal.




                                    25
                                   ______________________________________
                                              DANNER, J.




WE CONCUR:




____________________________________
           GREENWOOD, P.J.




____________________________________
           GROVER, J.




Modisette, et al. v. Apple, Inc.
H044811
Trial Court:                             Santa Clara County Superior Court
                                         Superior Court No. 16CV304364


Trial Judge:                             Hon. Theodore C. Zayner


Counsel for Plaintiffs/Appellants        Simon Greenstone Panatier
Bethany Modisette, James Modisette       Brian Patrick Barrow
and Isabella Modisette                   Nectaria Belantis

                                         Love Law Firm
                                         Gregory P. Love


Counsel for Defendant/Respondent         Gibson, Dunn, & Crutcher
Apple, Inc.                              Theodore J. Boutrous
                                         Christopher Chorba
                                         Jessica R. Culpepper

                                         Findlay Craft
                                         Eric H. Findlay
                                         Debby Gunter




       H044811
       Modisette et al. v. Apple, Inc.
