Texas parents who were seriously injured and lost their 5-year-old daughter in a fatal crash on Christmas Eve in 2014 have filed a lawsuit against Apple. The driver in the other car was allegedly using FaceTime and was driving 65 m.p.h. at the time he collided with their car.
They were stopped or slowed significantly because of police activity on I-35 north of Dallas and they were all wearing seat belts.
The driver was allegedly traveling at full highway speed and struck the Modisette family car from behind. The impact caused their car to be propelled forward, rotate, and come to a final rest at an angle facing the wrong direction of traffic. Then the driver in his Toyota 4Runner continued its trajectory by rolling up and over the driver’s side of the family’s Toyota Camry. The car sustained intense damage to all of the vehicle but the drivers’ side sustained such extreme damage that rescue workers had to labor extensively to extract the 5-year-old and her father who was in the driver’s seat. The wife and other daughter had to watch and hear the emergency crew effort to get them out of the mangled vehicle.
Moriah Modisette was air lifted from the scene but later died from her injuries. She was in her booster seat at the time of the crash.
The complaint states that the driver was distracted while using the FaceTime application on an Apple iPhone 6 Plus during operation of his motor vehicle. The lawsuit urges that the technology company should install features that automatically disable the chatting video feature if a driver is driving because they have access to the technology.
Courthouse News reported that the driver told police that he was on FaceTime at the time of the collision and officers found that FaceTime was live when they arrived at the crash site.
The parents claim that it was the California company’s “wrongful failure to install and implement the safer, alternative design for which it sought a patent in December 2008 (later issued by the United States Patent Office in April 2014), to ‘lock out’ the ability of drivers to utilize the ‘FaceTime’ application on the Apple iPhone while driving a motor vehicle, which resulted in the injuries sustained by Plaintiffs.”
They also urge that Apple’s “failure to warn users that the product was likely to be dangerous when used or misused in a reasonably foreseeable manner and/or instruct on the safe usage of this and similar applications, rendered the Apple iPhone 6 defective when it left defendant APPLE, INC.’S possession, and were a substantial factor in causing plaintiffs’ injuries and decedent’s death.”
Both the father, James Modisette, and wife Bethany, were injured in the crash. Mr. Modisette sustained critical injuries. The plaintiffs claim loss of consortium for their respective inability to perform work, service, and duties as a spouse in the care, maintenance, and management of the family home, now or in the future. The complaint brings causes of action for general negligence and gross negligence, products liability–negligence and strict liability, negligent and intentional infliction of emotional distress, as well as for loss of consortium.
Besides the Apple company, the family has also sued “Defendants DOEs 1 through 20” which the plaintiff parents say are unknown at this time but plaintiffs reserve the right to amend the lawsuit when the individuals are ascertained. “Plaintiffs are informed and believe, and thereon allege, that each Defendant designated as a DOE is responsible, negligently or in some other actionable manner, for the events and happenings referred to herein, and thereby proximately caused injuries and damages to the Plaintiffs,” the complaint states. The driver, Garrett Wilhelm, has not been named as a defendant.
The family, including Isabella Modisette, Moriah’s sister, has filed a demand for a jury trial.
The parties have asked for past and future loss of income, wages, and earning potential, household service, and past and future medical expenses, and non-economic damages for past and future physical pain and suffering, and the mental anguish caused by their injuries and from the loss of their daughter’s death. They have also plead for penalties, punitive and/or exemplary damages.
Wilhelm, the driver of the other car, was indicted on manslaughter charges by a Denton County, Texas grand jury in August 2015, reported the Denton Record-Chronicle. He was 20-years-old at the time of the collision. He is out on bail but faces a possibility of a prison sentence of at least two years but not more than 20 years.There has been no allegation that he was under the influence at the time he was operating his motor vehicle.
The Modisettes argue that the accident was caused by “distracted driving.” Their lawsuit sites statistics from the National Highway Traffic Safety Administration and it states that “at any given daylight moment across America, approximately 660,000 drivers are using cell phones or manipulating electronic devices while driving.” It also says that in 2012, an estimated 421,000 people were injured in motor vehicle accidents involving a distracted driver. A survey commissioned by AT&T in November 2014 also said that three-fourths of drivers have texted while driving even though they are aware of the danger.