Motion for Summary Judgment in EDWARD DEDITCH VS UBER TECHNOLOGIES, INC.| Trellis.Law

On November 17, 2021 a Motion,Ex Parte was filed involving a dispute between Deditch, Edward, and Cox, Billie Jo, Lyft, Inc., Portier, Llc., Raiser, Llc., Uber Technologies, Inc., for NEGLIGENCE in the District Court of Summit County.

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IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO

EDWARD DEDITCH ) CASE NO: CV-2021-11-3644
)
Plaintiff ) JUDGE KATHRYN MICHAEL
v. )
)
UBER TECHNOLOGIES, INC., et al. ) DEFENDANT LYFT, INC.’S MOTION
) FOR SUMMARY JUDGMENT
Defendants )

Defendant Lyft, Inc. (hereinafter “Lyft”) respectfully moves this Court for summary

judgment in its favor on Plaintiff’s Complaint, pursuant to Rule 56 of the Ohio Rules of Civil

Procedure, as there are no genuine issues as to any material fact, and Lyft is entitled to summary

judgment as a matter of law. A Brief in Support is attached hereto and incorporated herein.

Respectfully submitted,

/s/ Kristin L. Wedell
KRISTIN L. WEDELL (0072500)
Dickie, McCamey & Chilcote, P.C.
600 Superior Avenue East
Fifth Third Center, Suite 2330
Cleveland, Ohio 44114
216.685.1827 – Telephone
888.811.7144 - Facsimile
kwedell@dmclaw.com
Attorney for Defendant
Lyft, Inc.

Sandra Kurt, Summit County Clerk of Courts
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CERTIFICATE OF SERVICE

The foregoing Motion for Summary Judgment has been filed this 19th day of May, 2023,

through the Court’s electronic filing system. All parties may access the foregoing via the Court’s

electronic filing system.

/s/ Kristin L. Wedell
KRISTIN L. WEDELL (0072500)
Attorney for Defendant
Lyft, Inc.

Sandra Kurt, Summit County Clerk of Courts
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BRIEF IN SUPPORT

I. INTRODUCTION

In his Complaint, Plaintiff attempts to contort what should be a standard personal injury

case into what amounts to a legally unsupported and unprecedented product liability action.

Plaintiff’s claim against Lyft is premised on the fact that at the time of the accident, Defendant

Cox was using Lyft’s digital application (the “Lyft App”) for navigation on her way home like

millions of Americans use navigation every day to get from place to place. In doing so, Plaintiff

attempts to expand liability to Lyft under the theory that the “Lyft App” should somehow have

been designed to prevent Cox from using the Lyft App for navigation while she was driving home

and that Lyft’s purported failure to do so caused Plaintiff’s injuries. Plaintiff’s claim fails as a

matter of law for a myriad of reasons:

First, Ohio does not recognize common-law negligence claims, like Plaintiff’s, that are

based on negligent design of a product. Regardless of how Plaintiff styles his claim, at its core, the

allegations are based on the alleged negligent design of the Lyft App. However, Plaintiff’s

“negligence” claim has been explicitly abrogated by the Ohio Product Liability Act (“OPLA”),

Revised Code Section 2307.71 et seq. and therefore must be dismissed for this reason alone.1

Second, even if Plaintiff had alleged a product liability theory, the Lyft App is not a

“product” within the meaning of Ohio product liability law. This is a threshold requirement for all

products-liability-based-claims. Lyft is a transportation network company (“TNC”) under Ohio

law, Revised Code Chapters 4925 and 3942 (collectively, the “TNC Law”). Under the TNC Law

and as Plaintiff explicitly alleges in his Complaint, Lyft provides a service by way of a digital

1
Importantly, Plaintiff’s Complaint does not allege a cause of action under the OPLA.

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application which facilitates connections between drivers and riders seeking transportation. Thus,

both the regulatory TNC framework and Plaintiff’s own allegations underscore the obvious

conclusion that the Lyft App is a service, not a product. Courts in several states have dismissed

analogous claims against Lyft on this exact basis. Plaintiff’s design defect claim likewise cannot

stand.

Third, even if Plaintiff could present a viable common-law negligence claim based on the

alleged negligent design of the Lyft App (which he cannot), Plaintiff’s negligence claim is both

factually and legally deficient. It is undisputed that the Lyft App did not cause the subject motor

vehicle accident. The undisputed evidence establishes that Cox was not interacting with her phone

or the Lyft App in any way immediately before or at the time of the accident. Cox testified she did

not receive any messages or notifications through the Lyft App while traveling on her way home.

Lyft’s records also establish that she did not receive any ride requests, messages, or notifications

through the Lyft App within an hour of the subject accident. As such, it is undisputed that Cox was

not using, looking at, or distracted by her phone, let alone the Lyft App. Plaintiff’s causation

argument fails as a matter of fact.

Plaintiff’s causation theory is also barred as a matter of law. Courts around the country,

including in Ohio, have rejected analogous “driver distraction” theories. As those cases hold, the

ultimate duty to drive attentively lies with the driver. A driver that fails to comply with that duty

and diverts their attention from the road is the sole proximate cause of any ensuing accident, and

liability cannot be extended to the creator of the device. Indeed, Plaintiff’s proximate causation

theory has been rejected specifically as to the Lyft App. See Exhibit A, Townes v. Lyft, Inc., et al.,

Pa. Com. Pl. Lackawanna No. 2019-CV-1759, at 21-22 (Dec. 29, 2020) (finding proximate

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causation lacking as a matter of law where driver was alleged to have been distracted by the Lyft

App). Simply put, a driver who diverts his or her attention from the road is the sole proximate

cause of any ensuing accident. As such, liability cannot be extended to the manufacturer or owner

of an allegedly distracting device—be it a billboard, a GPS, or a cell phone application.

Accordingly, Plaintiff cannot establish that the Lyft App was the proximate cause of the accident

as a matter of law.

Fourth, even if Plaintiff could establish factual and legal causation (which he cannot),

Plaintiff’s negligence claim fails because it is based on a flawed theory of duty that cannot be

squared with Ohio law and the Ohio legislature’s explicit directive in the TNC Law. Lyft had no

obligation to restrict Cox’s use of its application while she was driving, as Plaintiff alleges. Lyft

is regulated exclusively and “comprehensive[ly]” by the TNC Law. R.C. 4925.09(A)(1). That law

defines a TNC as an entity that uses a “digital network to connect transportation network company

riders” to TNC drivers, like Cox. R.C. 3942.01(F). The TNC Law does not impose any

requirement on a TNC to prevent drivers from using its digital platform while driving—to the

contrary, the TNC Law specifically contemplates that TNC drivers will use TNC applications

while driving. Lyft therefore had no obligation to restrict Cox from using the Lyft App while she

was driving and Plaintiff’s attempt to impose such an obligation contradicts the legislature’s

mandate and has far-reaching and negative implications. Nor would Lyft otherwise owe any duty

to protect Plaintiff from harm caused by Cox. There was no relationship between Plaintiff and

Lyft, let alone the type of “special relationship” that could give rise to a duty under Ohio law.

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Finally, Plaintiff’s request for punitive damages is also improper because Plaintiff’s

substantive claim against Lyft fails and, regardless, it is entirely based on the incorrect assumption

that Cox was distracted by the Lyft App when she was indisputably not.

For these reasons, the Court should grant summary judgment in favor of Lyft.

II. STATEMENT OF FACTS

A. The TNC Law.

The TNC Law provides that “[t]he regulation of [TNCs], [TNC] drivers, and [TNC]

services is a matter of general statewide interest that requires statewide regulation.” R.C.

4925.09(A)(1). To the end, the TNC Law “constitute[s] a comprehensive plan with respect to all

aspects of the regulation of [TNCs], [TNC] drivers, and [TNC] services.” Id. (emphasis added).

“’[TNC] services’ means the provision of transportation beginning when a [TNC] driver

accepts a ride requested by a rider through a digital network controlled by a [TNC], continuing

while the driver transports the requesting rider, and ending when the last requesting rider departs

from the personal vehicle.” R.C. 3942.01(I)(1). The TNC Law defines a “digital network” as “any

online-enabled application, software, website, or system offered or utilized by a [TNC] that

enables the prearrangement of rides with [TNC] drivers.” R.C. 3942.01(C). A “[TNC] driver” is

an individual who “receives connections to passengers and potential passengers and related

services from a [TNC] in exchange for the payment of a fee to the company” and who “uses a

personal vehicle to offer or provide [TNC] services to riders upon connection through a digital

network controlled by a [TNC] in return for compensation or payment of a fee.” R.C.

3942.01(G)(1)-(2).

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True to its purpose, the TNC Law creates a detailed regulatory framework for TNCs like

Lyft. It includes permit and disclosure rules; requirements on who TNCs can permit to drive on

their digital applications, and detailed insurance specifications. R.C. 3942.02, 3942.04, 4925.02,

4925.03, and 4925.04. Nothing in the TNC Law imposes any obligation on a TNC to restrict use

of its application while drivers are operating their vehicles. Indeed, its provisions expressly

contemplate the contrary. See e.g. R.C. 3942.01(I)(1) (defining TNC “services” as when a TNC

driver uses the TNC application while driving a TNC passenger). And, equally important, the TNC

Law expressly “preempt[s]” additional regulation of TNCs. R.C. 4925.09(A)(1).

B. The Lyft App.

Lyft is a TNC that operates a website, smartphone application, and technology platform,

(the “Lyft Platform”) that connects persons who seek transportation to certain destinations with

drivers who are driving to or through these destinations. See Affidavit of Paul McCachern2 at ¶ 3.

To use the Lyft Platform to provide prearranged rides, drivers such as Cox must apply and be

approved by Lyft. McCachern Aff. at ¶ 5. After Cox applied to use the Lyft Platform, Cox and

Lyft agreed to a written contract—the Terms of Service—and Cox was then approved to use the

Lyft Platform on July 20, 2019. McCachern Aff. at ¶¶ 6, 8. (See Cox Resp. to Lyft RFAs No. 28)3.

C. The November 18, 2019 Accident.

This personal injury action arises from a motor vehicle collision in which Cox’s vehicle

allegedly collided with Plaintiff’s vehicle on November 18, 2019 at 5:20 p.m. (See Richfield Police

Traffic Crash Report, pg. 14) (the “Accident”). Earlier that day, Cox had used the Lyft Platform to

2
The Affidavit of Paul McCachern is attached as Exhibit B.
3
Defendant Billie Jo Cox’s Responses to Lyft’s Requests for Admissions are attached as Exhibit C.
4
The Richfield Police Traffic Crash Report is attached as Exhibit D

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provide prearranged rides using her personal vehicle. McCachern Aff. at ¶ 11; (see also,

Deposition of Defendant Billie Jo Cox5, pg. 51, L 15-16). She last accepted a ride request on the

Lyft Platform at approximately 3:16 p.m. McCachern Aff. at ¶ 12. (Cox Depo., pg. 150, L 22; pg.

151, L 6). The ride ended at approximately 4:52 p.m. in downtown Cleveland. McCachern Aff. at

¶ 13; (Cox Depo., pg. 108, L 19-25; Cox Resp. to Lyft RFAs Nos. 5 and 6).

Cox then immediately switched into “Destination Mode” on the Lyft App on her phone.

McCachern Aff. at ¶ 14; (Cox Depo., pg. 151, L 8-11). Cox input her home address—in Canton,

Ohio—as her destination into Lyft’s Destination Mode feature. McCachern Aff. at ¶ 15. When the

Destination Mode feature is active, the driver will only receive potential ride requests that place

them close to their destination. McCachern Aff. at ¶ 16. Cox switched into Destination Mode so

she would not receive any ride requests while she was in downtown Cleveland and so that she

would only receive potential ride requests on her way home. (Cox Depo., pg. 151, L 12-20).

Cox testified that she was only using the Lyft App for navigation purposes to travel home,

similar to the use of a navigation application such as Wave or Google Maps. (Cox Depo., pg. 151,

L 3-17; Cox Resp. to Lyft RFAs No. 16). After leaving Cleveland and switching to Destination

Mode, Cox did not input any data into the Lyft App. (Cox Resp. to Lyft RFAs No. 9). Likewise,

after leaving Cleveland, Cox did not see or view any communications, including ride requests,

from Lyft. (Cox Resp. to Lyft RFAs No. 12). Cox was simultaneously logged into the Uber

application. (Cox Depo., pg. 81, L 25, pg. 82 L1-2; pg. 83 L 16-18; Cox Resp. to Lyft RFAs No.

27). Cox’s personal mobile phone was always in a phone mount when her vehicle was moving on

the day of the Accident. (Cox Depo., pg. 150, L 12-21; Cox Resp. to Lyft RFAs No. 3).

5
The deposition transcript of Billie Jo Cox has been filed separately with the court.

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Immediately before the Accident (which occurred at 5:20 p.m.), Cox was traveling

southbound on Interstate 77 in the Village of Richfield. (Complaint, ¶ 24; Cox Depo., pg. 16, L 7-

9). Plaintiff was also traveling in his vehicle in front of Cox. (Deditch Depo., pg. 184, L 8-14).

Cox was watching the road immediately before and at the time of the Accident. (Cox Depo., pg.

152, L 23-25; pg. 153, L 23; pg. 154, L 2). She had both hands on the steering wheel and was

observing the road conditions. (Cox Resp. to Lyft RFAs Nos. 17 and 18).

As she was traveling in the left lane at the posted speed limit, Cox realized that the flow of

traffic was slowing down. (Cox Depo., pg. 98, L 11-24; Cox Resp. to Lyft RFAs No. 19).

Suddenly, two vehicles in front of Cox swerved out of the left lane into the berm. (Cox Depo., pg.

23, L 2-15). Cox saw Plaintiff’s vehicle stopped in front of her, and she applied her brakes. (Cox

Depo., pg. 110, L 22; pg. 111, L 5). She also tried to move her vehicle to the right to avoid a

collision but was unable to do so. (Cox Depo., pg. 111, L 21-23). Cox’s vehicle collided with the

rear-end of Plaintiff’s vehicle. (Cox Depo., pg. 25, L 8-9).

At the time of the Accident, Cox was neither transporting a passenger nor on her way to

pick up a passenger. McCachern Aff. at ¶ 10; (Cox Depo., pg. 81, L1; pg. 84, L 1). She did not

receive any ride requests, messages, or notifications via the Lyft App within one hour of the

Accident. McCachern Aff. at ¶ 17; (Cox Depo., pg. 154, L 3-17). The only message that Lyft sent

to Cox on November 18, 2019 was sent after the Accident occurred. McCachern Aff. at ¶ 18. Cox

was not looking at or interacting with her phone or the Lyft App in any way immediately before

or at the time of the Accident. (Cox Depo., pg. 155, L 8-16; Cox Resp. to Lyft RFAs No. 25). She

was not using her phone to write, send, or read any text-based communication. (Cox Resp. to Lyft

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RFAs Nos. 13-15). She was not distracted in any manner. (Cox Resp. to Lyft RFAs No. 22). There

are no witnesses, including Plaintiff, who testified to the contrary. (See Deposition of Robert

Gilbert6, pg. 25, L 8-25; pg. 26, L 1-21).

After the Accident, Officer Gilbert interviewed Plaintiff, Cox, and the other driver involved

in the Accident and found no evidence of distracted driving by Cox. (Gilbert Depo., pg. 25, L 8-

25; pg. 26, L 1-21). Cox was cited for violation of R.C. 4511.21—assured clear distance—a minor

misdemeanor traffic offense. (Gilbert Depo., pg. 23, L 13-25; pg. 24, L 1-8). She was not cited for

distracted driving.7 (Gilbert Depo., pg. 25, L 8-15).

D. Plaintiff’s Claims Against Lyft.

Plaintiff filed a Complaint against Lyft, Uber, Uber’s affiliates, and Cox. (Compl. ¶¶ 24,

26). Count One of the Complaint alleges negligence against Cox, and that Cox operated her motor

vehicle while distracted. (Compl. ¶¶ 32, 57).

Count Two alleges a negligence claim against Lyft, Uber, and Uber’s affiliates. Plaintiff

alleges that they knew or should have known that TNC drivers, including Cox, could respond to

rides requests via their applications while driving and that they should have therefore restricted

drivers such as Cox from accessing their applications while they were driving. (Compl. ¶¶ 65, 69).

The Complaint also alleges that Lyft acted with actual malice towards Plaintiff and seeks punitive

damages and attorney’s fees. (Compl. ¶ 98). Although Plaintiff captioned his claim against Lyft as

a common-law “negligence” claim, the cause of action is rooted in the alleged negligent design of

6
Former Officer Robert Gilbert was the responding officer to the scene of the Accident. He also completed the Traffic
Crash Report pertaining to the Accident. (See Gilbert Depo., pg. 17, L 21; pg. 18, L 23). A copy of the deposition
transcript has been filed separately with the court.
7
Distracted driving is a separate traffic offense from a violation of assured clear distance. Distracted driving is
prohibited by R.C. 4511.204.

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the Lyft App. Plaintiff claims that the Lyft App should have somehow been designed differently

to restrict its use by drivers while they are driving. (Compl. ¶ 69).

II. LEGAL STANDARD

Under Civil Rule 56, a party should be granted summary judgment when a review of the

pleadings, deposition testimony, and other evidentiary materials demonstrates that: (1) no genuine

issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as

a matter of law; and (3) it appears from the evidence, construed most strongly in the favor of the

non-moving party, that reasonable minds could only conclude in favor of the moving party. Horton

v. Harwick Chemical Corp. 73 Ohio St. 3d 679, 688, 653 N.E.2d 1196 (1995); Temple v. Wean,

50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

To prevail on a motion for summary judgment, “the movant need not necessarily support

its motion with evidentiary materials which directly negate its opponent’s claim.” Johnson v. Great

American Ins. Co., 44 Ohio App.3d 71, 73, 541 N.E.2d 100 (1988); (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986)). Rather, the movant may meet its burden by

pointing out those portions of the record which demonstrate that there is an absence of evidence

to support the non-moving party’s case. Johnson, 44 Ohio App. 3d at 73; see also, Dresher v. Burt,

75 Ohio St.3d 280, 291-93, 662 N.E.2d 269 (1996). To survive summary judgment, the non-

moving party may not simply rely on allegations in the pleadings but must come forward with

evidence sufficient for a jury to return a verdict in their favor. Dresher, 75 Ohio St.3d at 295.

IV. ARGUMENT

Plaintiff’s negligence theory is rooted in the premise that immediately prior to the

Accident, Cox was accessing the Lyft App while driving and was therefore distracted. (Compl.

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¶ 66). Plaintiff further claims Lyft owed Plaintiff a duty to restrict the use of its App by drivers,

like Cox, while they are driving, and that its failure to do so caused Plaintiff’s injuries. (Compl. ¶

69). Plaintiff’s theories are as factually incorrect as they are legally flawed:

 First, Plaintiff’s common-law “negligence” claim based on the design of the Lyft App is
not a legally viable claim in Ohio. The OPLA, Revised Code Section 2307.71 et seq,
abrogated any common-law negligence claim based upon the negligent design of a product;

 Second, the Lyft App is not a “product” within the meaning of product liability law;

 Third, the undisputed evidence establishes that Cox was not using the Lyft App, except for
navigation purposes;

 Fourth, Plaintiff’s theory of proximate causation is barred as a matter of law. Scores of
courts across the country, including in Ohio, consistently reject products liability claims
stemming from analogous “distracted driver” theories; and

 Fifth, Ohio law imposes no duty on Lyft to prevent Cox from using the Lyft App in this
manner.

A. Plaintiff’s Negligence Claim Fails as a Matter of Law as Ohio Does Not
Recognize Common-Law Negligence-Based Product Liability Claims and
Because the Lyft App Is Not a “Product.”

Although Plaintiff captioned his claim as a common-law “negligence” claim8, the cause of

action is based on the alleged negligent design of the Lyft App. (Compl. ¶¶ 66, 69, 71-88). Because

Ohio law does not recognize such a common-law negligence-based product liability claim and

because the Lyft App is not a “product,” Plaintiff’s claim fails as a matter of law.

1. The OPLA Has Abrogated Plaintiff’s Common-Law Negligence Claim.

The OPLA applies to any recovery of compensatory, punitive, or exemplary damages

based on a product liability claim. Ohio Revised Code Section 2307.72(A)-(B). The statute defines

8
Count Two of the Complaint is titled “Negligence of MAS Defendants with Malice.” (Compl., pg. 8).

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a “product liability claim" as one "that seeks to recover compensatory damages from a

manufacturer or supplier for death, physical injury to person, emotional distress, or physical

damage to property other than the product in question" that allegedly results from a manufacturing

or design defect, inadequate warning, or nonconformance with manufacturer representations. R.C.

2307.71(A)(13). The language in the OPLA specifically states that the OPLA is "intended to

abrogate all common law product liability claims or causes of action." R.C. 2307.71(B). In light

of this clear proclamation, “both the Sixth Circuit Court of Appeals and the Northern District of

Ohio have acknowledged that the OPLA expressly abolished all common law product liability

claims.” Meta v. Target Corp., 74 F. Supp. 3d 858, 861 (N.D. Ohio 2015) (citing Germain v. Teva

Pharms., USA, Inc., 756 F.3d 917, 2014 U.S. App. LEXIS 12111, *86-88 (6th Cir. 2014)); see

also, Darwish v. Ethicon, Inc., No. 1:20 CV 1606, 2020 U.S. Dist. LEXIS 228048, at *6-9 (N.D.

Ohio Dec. 4, 2020) (dismissing plaintiff’s negligence-based product liability claim citing R.C.

2307.71(B)).

Regardless of how a claim is drafted, “the OPLA preemption provision extinguishes any

common-law claim that, as pled, actually meets the statutory definition of a product liability

claim.” Volovetz v. Tremco Barrier Solutions, Inc., 2016-Ohio-7707, 74 N.E.3d 743, ¶ 34 (10th

Dist.) (granting summary judgment on negligent instruction claim preempted by OPLA) (citing

Evans v. Hanger Prosthetics & Orthotics, Inc., 735 F. Supp. 2d 785, 796 (N.D. Ohio 2010)

(dismissing negligent design claim as abrogated by OPLA) and Miles v. Raymond Corp., 612 F.

Supp. 2d 913, 918 (N.D. Ohio 2009) (rejecting argument that claims for negligent design and

warning were not "product liability claims" under the statutory definition because plaintiffs elected

not to plead them under the statute). It is “[t]he essential nature of the substantive allegations of

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the plaintiff's claim, not the artificial label attached to the claim, determines the claim's true

nature.” Volovetz at ¶33; Evans, 735 F. Supp. 2d at 796; Miles, 612 F. Supp. 2d at 921.

Plaintiff alleges that the negligent design of the alleged product—the Lyft App—allowed

Cox to interact with the Lyft App while driving which caused the Accident. This is a product

liability claim that falls squarely within the purview of the OPLA, regardless of how Plaintiff titles

it. “Courts have consistently held that a common law claim for negligent design, manufacture,

inspection and failure to warn are abrogated by Ohio Rev. Code § 2307.71(B).” Simpson v.

Johnson & Johnson, 2020 U.S. Dist. LEXIS 172542, 2020 WL 5629092, *9 (N.D. Ohio 2020).9

Because the substantive allegations of Plaintiff’s claim constitute a product liability claim in the

guise of a negligence action, the OPLA governs and the common-law claim must be dismissed.

See Evans v. Hanger Prosthetics & Orthotics, Inc., 735 F. Supp. 2d 785, 796 (N.D. Ohio 2010)

(“Courts routinely dismiss non-statutory product liability claims brought under Ohio law.”) see

also, Crisp v. Stryker Corp., No. 09-cv-02212, 2010 U.S. Dist. LEXIS 51390 (N.D. Ohio May 21,

2010) (“the OPLA does abrogate all common law products liability causes of action”); Miles v.

Raymond Corp., 612 F. Supp.2d 913 (N.D. Ohio 2009); Delahunt v. Cytodyne Techs., 241 F. Supp.

9
See, e.g., Wimbush v. Wyeth, 619 F.3d 632, 639 (6th Cir. 2010); Tompkin v. Am. Brands, 219 F.3d 566, 575 (6th Cir.
2000); Meta v. Target, 74 F. Supp. 3d 858, 860-61 (N.D. Ohio 2015); Roshong v. Fitness Brands Inc., No.
3:10CV2656, 2012 U.S. Dist. LEXIS 72806, 2012 WL 1899696, at *2 (N.D. Ohio May 24, 2012); Erie Indemn. Co.
v. Keurig, Inc., No. 1:10-CV-02899, 2011 U.S. Dist. LEXIS 76998, 2011 WL 2893013, at *5 (N.D. Ohio July 15,
2011); Boroff v. Alza Corp., 685 F. Supp. 2d 704, 711 (N.D. Ohio 2010); Evans v. Hanger Prosthetics & Orthotics,
Inc., 735 F. Supp. 2d 785, 796 (N.D. Ohio 2010); Miles v. Raymond Corp., 612 F. Supp. 2d 913, 921 (N.D. Ohio
2009); Wel Companies, Inc. v. Haldex Brake Prods. Corp., No. 2:19-CV-912, 467 F. Supp. 3d 545, 2020 U.S. Dist.
LEXIS 106613, 2020 WL 3268619, at *2, *8 (S.D. Ohio June 17, 2020); Hendricks v. Pharmacia Corp., No. 2:12-
CV-00613, 2014 U.S. Dist. LEXIS 76125, 2014 WL 2515478, at *4 (S.D. Ohio June 4, 2014), report and
recommendation adopted, No. 2:12-CV-613, 2014 U.S. Dist. LEXIS 140184, 2014 WL 4961550 (S.D. Ohio Oct. 2,
2014); Bowles v. Novartis Pharms. Corp., No. 3:12-cv-145, 2013 U.S. Dist. LEXIS 134350, 2013 WL 5297257, at *7
(S.D. Ohio Sept. 19, 2013); Hempy v. Breg, Inc., No. 2:11-CV-900, 2012 U.S. Dist. LEXIS 14947, 2012 WL 380119
at *3 (S.D. Ohio Feb. 6, 2012); Michelson v. Volkswagen Aktiengesellschaft, 2018-Ohio-1303, 99 N.E.3d 475, 481-
82 (Ct. App.); Parker v. Ace Hardware, 2018-Ohio-320, 104 N.E.3d 298, 305, 307 (Ohio Ct. App. 2018); Rodgers v.
Genesis Healthcare Sys., No. CT2015-0030, 2016-Ohio-721, 2016 WL 762607, at *7.

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2d 827, 844 (S.D. Ohio 2003) (dismissing negligent design and inadequate warning claims pled as

negligence claims as these claims are displaced by the OPLA and must be pled pursuant to the

OPLA statute).

2. The Lyft App Is Not A “Product” As Defined By The OPLA.

Even if Plaintiff’s negligence theory was a viable cause of action (which it is not), it fails

as a matter of law because the Lyft App is not a “product”—it is a service. To advance a product

liability claim based on the allegedly defective design of the Lyft App, Plaintiff must first prove

that the Lyft App is a “product” covered by the OPLA. A “product” is defined by the OPLA as

“any object, substance, mixture, or raw material that constitutes tangible personal property...” R.C.

2307.71(A)(12)(A). It must also satisfy all the following: “(i) it is capable of delivery itself, or as

an assembled whole in a mixed or combined state, or as a component or ingredient; (ii) it is

produced, manufactured, or supplied for introduction into trade or commerce; and (iii) it is

intended for sale or lease to persons for commercial or personal use.” Id.

Plaintiff’s negligence claim fails at the threshold because the Lyft App is not a “product”

subject to products liability law. Plaintiff agrees. In fact, he specifically alleges that Lyft is a

“mobility as a service (‘MAS’) provider[] that provide[s] a service that, among other things,

connects drivers to individuals requesting motor vehicle transportation.” (Compl. ¶ 10) (emphasis

added). Plaintiff further avers that Lyft “provide[s] MAS services through applications (‘MAS

Application’) that run on wireless mobile devices.” Id. ¶ 13 (emphasis added). Plaintiff’s

allegations correctly echo the regulatory definition of a TNC, which is by definition, a corporation

that “uses a digital network to connect [TNC] riders to [TNC] drivers who provide [TNC]

services.” R.C. 3942.01(I)(1) (emphasis added).

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The Court need go no further: Plaintiff’s allegations are consistent with Lyft’s regulatory

definition. The Lyft App is a service not a product, and Plaintiff’s negligence claim against Lyft

thus cannot stand.

Courts around the country have reached this conclusion as to the Lyft App and similar

applications. In Huerta-Mondragon v. Lyft, Inc., et al., No. 21STCV07961 (Superior Court of

California, County of Los Angeles, Jan. 18, 2023), the court dismissed a products liability claim

grounded in the theory that the Lyft App distracted a driver. (See Exhibit E). The court concluded

“as a matter of law, that the Lyft App is not a ‘product’ such that Plaintiff’s complaint fails to state

a claim for strict product liability.” Id. at 3. In Thiam v. Lyft, Inc., Case No. 2022 L 003052 (Circuit

Court of Cook County, Il., Dec. 20, 2022) (see Exhibit F), the court likewise dismissed the

plaintiff’s product liability claims because “Lyft’s app, as defined in [the Illinois TNC Act] is not

a product. It is a service.” The court reaffirmed this in denying the plaintiff’s motion to reconsider,

cogently explaining that:

[T]he service provided by companies like Lyft consists of two
components: first, the act of driving itself, and second, the
arrangement of that driving through the use of a software
application. Therefore, the application is just as much the service as
is the driving. The application is not a product. It is a service.

(See Exhibit G).

So too, in Baxter-Armentrout v. Lyft, Inc., et al, No. 50-2021-CA-013917-XXXX-MB,

(Palm Beach County, Fl., Aug. 29, 2022), the court dismissed the plaintiff’s product liability

claims because the “Lyft App is not a ‘product’ subject to Florida products liability law” but rather

was a “statutorily-defined ‘service’ under Florida’s TNC statute.” (See Exhibit H). In Polanco v.

Lyft, Inc., et al., No. 30-2019-01065850 (May 18, 2021, Cal. Super. Ct.), the court similarly

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dismissed a products liability claim grounded in the theory that the Uber App distracted a driver.

The court held that “products liability does not extend to services” and that “the Uber App is a

service, not a product.” (Ibid., Minute Order at 1-2 (citing Pierson, 216 Cal. App. 3d at 345). The

same result was reached in Doe v. Uber Technologies, Inc., et al., No. 19-CV-11874 (Nov. 30,

2020 Cal. Super Ct.), where the court explicitly found “that the Uber App is not a product.” (See

Exhibit I at 11). See also, Jackson v. Airbnb, Inc. (C.D.Cal. Nov. 4, 2022, No. CV 22-3084), *28

__ F. Supp. 3d. __, 2022 U.S. Dist. LEXIS 202765 (dismissing product liability claims because

“Airbnb is a platform that connects users; it is more akin to a service than to a product”). As such,

Plaintiff’s claim fails as a matter of law.

B. The Lyft App Did Not Cause Plaintiff’s Injuries.

The next fatal flaw in Plaintiff’s negligence claim is lack of causation. “[A] cause of action

for negligence requires proof of: (1) a duty requiring the defendant to conform to a certain standard

of conduct, (2) breach of that duty, (3) a causal connection between the breach and injury, and (4)

damages.” Cromer v. Children’s Hosp. Med. Ctr. Of Akron, 142 Ohio St.3d 257, 263, 29 N.E.3d

921 (2015), citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707

(1984); Sizemore v. Deemer, 3rd Dist. Marion No. 9-21-02, 2021-Ohio-1934, ¶ 18, 174 N.E.3d 5

(June 7, 2021). “No presumption or inference of negligence arises from the mere happening of an

accident or from the mere fact that an injury occurred.” Titenok v. Wal-Mart, 10th Dist. Franklin

No. 12AP-799, 2013-Ohio-2745, 2013 Ohio App. LEXIS 2765 (June 27, 2013), citing Dickerson

v. Food World, 10th Dist. Franklin No. 98AP-287, 1998 Ohio App. LEXIS 6218 (Dec. 17, 1998).

See also, Parras v. Standard Oil Co., 160 Ohio St. 315, 319, 116 N.E.2d 300 (1953) (explaining

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that in order for an inference to arise as to negligence of a party, there must be direct proof of a

fact from which the inference can reasonably by drawn).

To succeed on a negligence claim, Plaintiff must establish that the breach of a duty caused

his injuries. Reiger v. Giant Eagle, 157 Ohio St.3d 512, 516, 138 N.E.2d 1121 (2019) (citing

Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). The element of causation

includes both cause in fact and legal causation i.e. proximate causation. Stibley v. Zimmerman, 4th

Dist. Athens No. 97CA51, 1998 Ohio App. LEXIS 3988 (Aug. 26, 1998); see also, Gedra v.

Dallmer Co., 153 Ohio St. 258, 91 N.E. 256 (1950), ¶ 1 of syllabus, (“As with the other elements

of negligence, a plaintiff must prove proximate cause by a preponderance of the evidence”). Here,

Plaintiff cannot establish that the Lyft App caused the Accident and his resulting injuries.

1. Plaintiff Cannot Establish That Cox Was Distracted by the Lyft App at
the Time of the Accident.

Plaintiff has no evidence that Cox was interacting with the Lyft App in any manner at the

time of the Accident and as such, Plaintiff cannot establish causation as a matter of fact. To the

contrary, the undisputed evidence establishes that Cox was not using her phone in any way, let

alone interacting with the Lyft App at the time of the Accident. Cox was not providing a ride via

the Lyft Platform nor was she looking for a ride. McCachern Aff. at ¶ 8; (Cox Depo., pg. 81, L 1;

pg. 84, L 1). After she dropped off a passenger and switched to Destination Mode, she only used

the Lyft App to navigate out of downtown Cleveland to the highway and subsequently to her home.

(Cox Depo., pg. 117, L 10-13; Cox Resp. to Lyft RFAs Nos. 7, 8, and 16). Her phone was in a

phone mount while the vehicle was moving. (Cox Depo., pg. 150, L 18-21; Cox Resp. to Lyft

RFAs No. 3). Cox was not looking at or otherwise interacting with her phone or the Lyft App

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immediately before or at the time of the Accident. (Cox Depo., pg. 153, L 24; pg. 154, L 17; Cox

Resp. to Lyft RFAs No. 11).

Plaintiff cannot contradict this evidence. Further, Plaintiff would have no way of knowing

whether Cox was looking at her phone because her vehicle hit his vehicle from behind, and he did

not see her vehicle prior to the impact. (Deditch Depo., pg. 45, L 5-9; pg. 151, L 8-14; pg. 155, L

13-15, pg. 184, L 8-14). No witnesses have testified that they saw Cox using her phone (much less

using the Lyft App) at any time prior to the Accident. Officer Gilbert interviewed Plaintiff, Cox,

and the other driver involved in the Accident and found no evidence of distracted driving. (Gilbert

Depo., pg. 25, L 8-25; pg. 26, L 1-21). Cox stated that she did not use her mobile device to write,

read, or send a text-based communication at any time after dropping off her passenger in downtown

Cleveland. (Cox Resp. to Lyft RFAs Nos. 13-15). Cox was not cited by the police for distracted

driving. (Gilbert Depo., pg. 25, L 8-15). As a result, Plaintiff cannot establish that Cox was

distracted by the Lyft App at the time of the Accident and his claim thus fails as a matter of fact.

See Parras, 160 Ohio St. 315 at 319, 116 N.E.2d 300 (1953).

2. Plaintiff’s Causation Theory Has Been Rejected by Courts Across the
Country.

Even assuming that Cox was somehow distracted by the Lyft App at the time of the

Accident (which she was not), Plaintiff’s causation argument still would be legally unavailing.

Courts have rejected such an attenuated chain of causation in the distracted driving context

because, if carried to its logical conclusion, it would expand the scope of liability to the owners of

anything a driver could glance at while driving: i.e., to automobile manufacturers (for dashboard

displays, air conditioning vents, and stereo knobs), municipalities (for road signs), cell phone

companies, digital app makers, GPS companies, billboard advertisers and landowners. See, e.g.,

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McCray v. Myers, 614 So.2d 587, 590 (Fla. App. 1st Dist. 1993) (upholding grant of summary

judgment where a motorist who was injured by another driver distracted by a billboard sued the

landowners on whose property the billboard stood and explained that “[i]t would defy logic in the

present case to permit a jury to consider the existence of legal causation”).

For this reason, Plaintiff’s theory of causation has now been rejected specifically as to the

Lyft App. See Ex. A, Townes v. Lyft, Inc., Pa. Com. Pl. Lackawanna No. 2019-CV-1759 (Dec. 29,

2020). In Townes, a Pennsylvania court assessed a similar claim in a personal injury case and

dismissed it for lack of proximate causation, holding:

The liability for allegedly distracting technology appears to be one of first
impression in Pennsylvania. However, in other states courts have held that
proximate cause is lacking because no real risk of injury materializes until a driver
“neglects her duty to safely operate her vehicle by diverting her attention from the
roadway.” Meador v. Apple, Inc., 2016 U.S. Dist. LEXIS 189185, *4 (E.D. Tx.
Aug. 16, 2016) . . . The negligent conduct arises from the driver’s interactions with
these devices. As such, these allegations are insufficient to warrant a finding that
the Lyft app proximately caused the accident in this case.

Id. at 22.

Ohio law is no different. “Proximate causation” has been described as “‘some reasonable

connection between the act or omission of the defendant and the damage the plaintiff has

suffered.’” Marsh v. Heartland Behavioral Health Ctr., 10th Dist. No. 09AP-630, 20

Case Info

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KATHRYN MICHAEL Track Judge’s New Case

Case No.

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Document Filed Date

May 19, 2023

Case Filing Date

November 17, 2021

County

Parties

BOROFF, ROBERT Attorney for the Defendant
BOULAS, JAMES Attorney for the Plaintiff
COX, BILLIE JO Defendant
DEDITCH, EDWARD Plaintiff
ISAKOFF, ANDREW Attorney for the Defendant
LYFT, INC. Defendant
PORTIER, LLC. Defendant
RAISER, LLC. Defendant
RININGER, MAGISTRATE Otherparties
UBER TECHNOLOGIES, INC. Defendant
WEDELL, KRISTIN Attorney for the Defendant
Shaka Sadler Attorneys for Defendants

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Motion,Ex Parte: EDWARD DEDITCH VS UBER TECHNOLOGIES, INC.

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