Can An App Be Sued for Product Liability?

When a mobile app causes an injury to a consumer, can the manufacturer be held responsible? In some cases, they can be, but you must be able to prove the elements of a product liability suit which can be challenging. 

FDA Regulation on Apps

On September 25, 2013, the FDA issued guidance explaining how it plans to regulate mobile medical applications, or “apps,” under the Federal Food, Drug, and Cosmetic Act (FD&C Act). The guidance clarifies which mobile apps[1] will be regulated by the FDA and who will be required to comply with the regulations. The FDA intends to focus its oversight on mobile medical apps whose functionality poses a risk to patient safety if the mobile app malfunctions.

Therefore, the FDA will regulate “mobile medical apps,” defined in section 201(h) of the FD&C Act, that are intended to:

• Be used as an accessory to a regulated medical device; or
• Transform a mobile platform into a regulated medical device.

If the intended use of a mobile app is for the diagnosis, cure, treatment, or prevention of disease, the mobile app is a “device.” However, there are exceptions depending on the device’s level of risk to the public or lack thereof.

As a result, any party that initiates specifications, designs, labels, or creates a software system or application for a regulated medical device can be liable for injuries due to failure to comply with FDA regulations. 

Previous App Product Liability Lawsuits

Aside from medical apps, other types have also posed unanticipated risks to consumers. For example: 

 Uber

In 2015, a pedestrian filed a product liability lawsuit against Uber and one of its drivers after suffering a severe injury and losing her boyfriend in an accident. She claimed that Uber should have foreseen that its drivers would use the Uber app while driving and would, therefore, violate state laws against distracted driving.

Pokémon Go

Pokémon Go developer Niantic settled a class action lawsuit in 2016 for causing players of the popular augmented-reality game to trespass on private property.

Snap Inc.

In 2021, the parents of three teenage boys killed in a car accident pursued a product liability lawsuit against the popular photo app Snapchat due to a “speed filter.” The parents argued that Snapchat was negligently designed because it incentivized users to drive at dangerous speeds by offering a speed filter that many believed would reward them if they drove 100 miles per hour or faster. One of the boys posted a “snap” using the “speed filter” minutes before the fatal accident. 

Snap fought the lawsuit by claiming immunity under Section 230 of the Communications Decency Act, which shields social media companies from liability for user-posted content. However, the Ninth Circuit disagreed, and a judge ruled in 2021 that the maker of Snapchat could potentially be liable under a negligent design theory. This case has not yet been resolved and is ongoing. 

Legal Issues Involved in Suing an App for Product Liability

There are various challenges involved with suing an app developer, designer, or another party that took part in its creation, and they will vary by case. However, a critical element will be what you agreed to when you downloaded and began using the app. An app’s terms of use can be an enforceable contract, impacting your ability to sue. As a result, hiring an experienced Philadelphia product liability lawyer is critical to help you determine whether you should consider suing an app for product liability.