Tragic, Horrible Accident -- But Was Apple Negligent Or Are They Just The Deepest Pockets To Go After?
I can completely understand that the parents of the 5-year-old who died in this car wreck would want to place blame for this.
But should the blame be with Apple for not having some sort of phone-disabling software for when someone using their phone is in a moving car?
WAZE app senses that you're in a car -- but you can click on it to tell it you're the passenger, not the driver.
Technically speaking, can Apple shut down Facetime or other functions for drivers "at highway speed" (as it says in the lawsuit) -- and separate drivers from passengers in trains, buses, etc. (still allowing them functionality of their phones)?
In the lawsuit, it says there's a "scenery analyzer" that disables the phone for the driver "at highway speed" but apparently keeps it functional for others. Isn't it possible people would be able to defeat this? And what of non-"highway" speeds? You can kill a pedestrian while texting and driving 40 miles per hour.
From the New York Daily News story by Brian Lisi:
While driving through Denton County, Texas, on Christmas Eve 2014, James and Bethany Modisette came to a stop on Interstate 35W due to a traffic incident ahead of them on the road. Their children, Isabella, 8, and Moriah, 5, sat behind them.All members of the family wore seat belts.
Chatting away on FaceTime and not noticing the traffic ahead of him, Garrett Wilhelm rear-ended the Modisettes' vehicle at 65 mph. He was reportedly on his way to his parents' home.
...In the Modisettes' lawsuit, filed nearly two years to the day after their daughter's life was lost, the family cites Apple's "failure to install and implement the safer, alternative design ... to 'lock out' the ability of drivers to utilize the FaceTime application."
Likewise, the parents claim the company didn't warn FaceTime users that "the product was likely to be dangerous when used or misused in a reasonably foreseeable manner."
The tech giant responsible for the iPhone filed for a patent for a driver lock-out feature in 2008, according to KTLA.
As for the claim that Apple didn't warn FaceTime users, we all see commercials on texting and driving. I'm guessing that a psychologist can make a persuasive case that warnings would be ignored, with people thinking, "It won't happen to me."
In fact, they make this point in their own legal document -- point #20.
Everybody has heard the cautionary warnings about texting while driving. But because some dumbshit decided to do it anyway, Apple is at fault?
I don't think so.
Patrick at December 31, 2016 5:07 AM
Amy, just FYI - both links take me to the lawsuit PDF.
I think this might be the new article:
http://www.nydailynews.com/news/national/parents-sue-apple-daughter-facetime-related-death-article-1.2928842
But, you're right it is not about who is really responsible; it is about deep pockets. They (really their lawyers) know who has the ability to pay and who doesn't. That young driver who is the one at fault for the accident doesn't have a penny; but, Apple does.
charles at December 31, 2016 7:03 AM
When did we lose the ability to grieve quietly? When did it become necessary to involve the world in our grief process?
Lashing out is a part of the grieving process. Now, thanks to social media and lawsuits, we can lash out on a grand scale. We can sweep the world into our grief, and make everyone pay for how we feel.
Is it not enough that the careless 22-year-old driver is facing manslaughter charges and a lifetime of guilt? Why not push for a comprehensive state law against using a cellphone while driving as a legacy for their daughter; since "Texas is among a handful of states without a comprehensive law on using a cellphone while driving."
Conan the Grammarian at December 31, 2016 7:49 AM
The only person responsible for this accident is the idiot trying to Facetime while driving. Period.
This lawsuit should get thrown out, and the lawyer who brought it to court should get his ass handed to him.
Daghain at December 31, 2016 10:11 AM
Should Apple be slapped? Well, I'm not sure.
If you visit r/roadcam, liveleak, r/watchpeopledie, horriblevideos.com you will certainly understand that texting or working a phone while driving is a real problem, is a significant problem, and causes massive injuries and death NOT to the holder of the phone, but to the vehicle in front of that person.
and via https://www.distraction.gov/stats-research-laws/facts-and-statistics.html
> In 2014, 3,179 people were killed, and 431,000 were injured in motor vehicle crashes involving distracted drivers.
It's not any sort of victimless crime. Absolute innocents are absolutely dying from this and there is no 2nd Amendment right to text and drive or facetime and drive that I am aware of.
I suspect there are technical ways to mitigate this on brand new cars, notably by making it easier for cars to incorporate heads up displays and texting apps.
For those of us in "legacy" cars, I think I might be very okay with incredibly severe fines including loss of a license for use of apps outside of navigation apps while driving. And any use of a phone that is not mounted in an eyes-up location. (windshield, dashboard, vents, cd-tray, ...)
Since the phone makers, cars manufacturers and legislators are failing on this, I am okay with the Modisettes going after Apple and Apple's insurance company for as much as they can.
They are completely innocent victims, and it's the only leverage they have.
If it hits Apple's insurance hard enough, maybe it will trickle down to gov't and the car and phone makers.
jerry at December 31, 2016 4:05 PM
jerry, that line of thought is delusional. Apple is not responsible for the driver of the other car hitting the Modisettes. Apple is not responsible for him deciding to take a video call while driving. A video call!
Holding Apple responsible when someone acts stupidly using an Apple product is not going to make other people who act stupidly rethink their actions. It's only going to tell people that when they do something stupid, it's not their fault, it's their phone's fault. Why not blame the car company for not installing cell phone jamming? Or the police for putting a road block so close to a blind curve?
We already have enough trouble in our society with people blaming products for their own stupidity. We don't need to add another legal precedent that allows blame to be shifted solely because a third party not actually responsible has money.
Conan the Grammarian at December 31, 2016 4:51 PM
"Since the phone makers, cars manufacturers and legislators are failing on this, I am okay with the Modisettes going after Apple and Apple's insurance company for as much as they can."
You're a special snowflake, you are: shifting blame at every opportunity.
The bus is not responsible for your dumb as stepping in front of it. Chevrolet is not responsible for your standing on the gas pedal in the parade.
You are, and every attempt to shove your own personal responsibility onto somebody else tells me I should never seek your company.
Grow up.
Radwaste at December 31, 2016 6:01 PM
Jerry, astounding as it may sound (even to me), I have to agree with Conan and Radwaste.
Who the hell learns to drive without the understanding that you're supposed to pay attention while doing it?
If he was voluntarily getting a blowjob from his girlfriend when he rearended that car, should he sue the girl who was sucking his dick?
Not if it was consensual.
There are any number of things a person shouldn't do while driving. If he was eating fast food when he rearended that car, should he sue McDonald's?
Patrick at December 31, 2016 7:00 PM
It is clear states think the drivers have responsibility, that's why texting while driving is illegal.
It is pretty clear that Apple and many app makers believe they have responsibility. That's why they put up a button saying you can't use this while driving.
It is also clear that the Modisettes have the least to zero responsibility in this. THEY ARE THE INNOCENT BYSTANDERS far more than Apple is.
Given that Apple et. al., clearly know that it is dangerous to drive while using a smartphone, given, given that we have the right to eat food, but no right to consume alcohol in a car, the right to own guns, but very limited rights to using a gun in a car,
AND KNOWING the Modisettes HAVE THE RIGHT to take their case to court, well I am certain all the civil libertarians here will cheer on the Modisettes as they exercise their right to have their day in court.
I am confident that Apple has on hand good lawyers who will make the absolute best possible case in court for Apple.
jerry at December 31, 2016 7:40 PM
This is not a question of whether the driver is not mostly responsible, or if the driver shouldn't be sued.
It's a question of whether Apple is partly responsible and if Apple should be sued.
Apple is very likely legally partly responsible and they know it, that's why all those apps tell people they can't use them while driving.
And the question of whether Apple should be sued is entirely irrelevant. In all of this, it is plain the Modisettes have the least to zero responsibility, were absolutely the most affected, and also have the least power to be heard in court or in Congress.
So if they're best opportunity to be heard and effect change lies in taking Apple to court, I say go for it, more power to them, and I hope they can make the best cast they can.
jerry at December 31, 2016 7:47 PM
Gah! Spelling!
s/they're/their/
s/cast/case/
jerry at December 31, 2016 7:58 PM
"Apple is very likely legally partly responsible and they know it, that's why all those apps tell people they can't use them while driving."
Your jurisprudence theories need some work.
Isab at December 31, 2016 8:04 PM
You're the lawyer, not me, but yeah, my guess is that all those apps demanding people not use them while driving along with all those laws making activities like texting illegal are BETTER as evidence that Apple is very likely legally responsible and knows it than all the other evidence free moral pontificating made to this point are evidence that Apple is not responsible.
Better, if it was truly obvious that Apple is not responsible, than we wouldn't be hearing all the statements of poutrage regarding this suit going forward.
jerry at December 31, 2016 9:09 PM
Better, if it was truly obvious that Apple is not responsible, than we wouldn't be hearing all the statements of poutrage regarding this suit going forward.
jerry at December 31, 2016 9:09 PM
Let me see if I can give you some similar hypotheticals that will make a good analogy.
Your car comes with all sorts of warnings as to when you should NOT be using cruise control, like icy road conditions, winding mountain roads, dense fog. Etc.
You ignore those warnings, and turn it on anyway, and get into a bad accident. Is GM liable for putting cruise control on your car?
How about if a gun manufacturer warns you that if the gun you bought from them is loaded, and you are concealed carrying, you should always have the safety on. You ignore both those warnings, and shoot yourself or someone else accidentally. Is the gun manufacturer liable?
The amount of noise someone makes about a law suit is inversely proportional to their chances of winning.
Isab at December 31, 2016 10:25 PM
I have been the first to respond to a traffic accident involving a woman in a small car striking the right front wheel of a semi turning left in front of her.
Her phone call was too important for her to step on the brake pedal. Others at the intersection said she did nothing. She was on the phone with her father, whom she had just left in the church parking lot three blocks away.
I had run into the intersection from the gas station on the corner, in time to see her get out of her car, phone still pressed to her ear. I asked, "Have you called 911?" All I got was a distracted look. It was obvious she wasn't on with 911... I had to shout and wave at her, point-blank, and ask again to get her OUT OF THE PHONE to find out if she was hurt.
Dumbass...
So I ask you all, rhetorically: Do you hate your family so much that you set them up to hear you die?
Radwaste at January 1, 2017 2:10 AM
Again, I'm just a layman, but I'd say a gun is a gun, a car is a car, and a smartphone as is, is not a device designed for a car.
I'd also say there is a difference between a warning on a placard about using cruise control on a car, and a positive prohibition that has been put into place in an app AS GOOGLE DOES, AS WAZE (NOW GOOGLE) DOES, by making you affirmatively state you are not the driver of the car.
I'd say that the historical evidence is the phone makers know how dangerous it is and have gone to great lengths including adding a "scenery analyzer" to disable certain functions for drivers.
As a layman I would say maybe a lawyer could reasonably argue that the scenery analyzer is both faulty and insufficient. That Apple's putting in the scenery analyzer indicates Apple knows it could be held partially responsible for what happens to people who misuse their phones.
It's why I said such a lawsuit could force Apple, Ford/GM, and Congresscritters to make it easier to install car computers into cars and have us communicate with them through Heads Up Displays, voice and proper UIs.
I'd also say gun analogies are quite likely not helpful because of 2nd Amendment issues. Nevertheless: "Is the gun manufacturer liable?" If you ask almost President Hillary and her supporters the answer is yes. If you ask Bernie the answer is no, so if you ask me, I'd say it is quite reasonable to say the answer lies in a court.
jerry at January 1, 2017 2:22 AM
Come save us, guv'mint, says jerry! They'll fix it!
Easy question we can answer here. 'Is Apple liable?' 'No'
If you're behind the fucking wheel, you're responsible for the car. You don't have to answer the phone. If you can't handle that, put it in pocket like I do or turn it off. Asking for the nanny state to protect you from it is admission you can't be trusted in charge of a vehicle. Make sure you get your mom to blow your nose before she drives you to work.
Ltw at January 1, 2017 3:51 AM
The thing Apple is rightly coverned about is that people like Jerry are going to be on the jury if this mess makes it to trial.
People who dont understand that patenting a safety feature does not impose a legal obligation to actually install it on the car or the phone and a corresponding liability for not doing so.
Isab at January 1, 2017 6:28 AM
No, jerry, a thousand times no. Those warnings exist because of frivolous lawsuits in which people did something stupid with a device or product and sued the manufacturer in an attempt to cash in or divert blame.
That's why...
Since the driver ignored Apple's (or the app developer's) warning not to use the app while driving, how is Apple liable? Please explain.
And then explain how, if you hold the developer of a video phone app legally responsible for its gross misuse, it is that you're going to encourage app developers to develop new and useful apps.
I mean, once the map app developer is held legally liable for you getting lost and the social media app developer is held legally liable for you getting bullied, why would anyone develop apps?
Conan the Grammarian at January 1, 2017 8:42 AM
jerry, those devices are already in cars, newer cars. My phone connects to my car via bluetooth and I don't have to hold it to make a call since it has voice commands enabled. No lawsuits or Congresscritter interference necessary, just a competitive marketplace hungry for innovations.
Of course, that same computer innovation makes it possible for someone with a laptop to take over my car without my permission or ability to deter the takeover. Someone should sue somebody. Wait, too late. I guess this will encourage the government to save us from the very thing the last lawsuit encouraged the government to implement.
Conan the Grammarian at January 1, 2017 8:53 AM
"Apple is very likely legally partly responsible and they know it, that's why all those apps tell people they can't use them while driving."
See, See! THIS is the kind of logic you get after making pot legal!
Sorry to be so offensive; but, that is the stupidest logic I have ever heard.
Kind of like mom is at fault for telling the kid to not touch the hot stove! After all, she is telling him to not touch the hot stove so she MUST be a fault.
charles at January 2, 2017 8:36 AM
Chatting away on FaceTime and not noticing the traffic ahead of him, Garrett Wilhelm rear-ended the Modisettes' vehicle at 65 mph. He was reportedly on his way to his parents' home.
We shouldn't be critical of Apple, or even Garrett. People, especially millenials, know that being able to chat on FaceTime while zooming along at 65 mph is far more important than the life of any child.
JD at January 2, 2017 12:54 PM
Proof that you can make it foolproof, but you can't make it damnfoolproof.
JoJo at January 3, 2017 8:27 AM
Ok here is a perfect example same vein. I'm currently dealing with this. All dash board installed video playback systems for cars have a safety feature. This feature requires that the parking break be applied in order for video to work. The same signal that indicates parking break applied and lights up the dash. This requires an extra wiring step on installation but is present on ALL front console (in dash)play back systems. Now they sell a little device who's sole purpose is to bypass this safety feature. Amazon sells almost as many of these devices as the do play back systems. Who do we blame if people are intentionally spending additional money to bypass safety features? Additionally this device has some where around 3-5 components so anyone can get the parts from Digi-key to build one if selling them does become illegal. Should Amazon be held liable, Digi-key? In fact there is an even easier way to by pass it but not getting sewed for sharing it here. Google it. Oh and since you can google this information should google be held liable? Some actually watch video on the display while driving. Some use this feature because getting the GD wire to the parking brake can be a nightmare. Yes my car was a nightmare. Yes I did it properly. However if I just lift the parking break a tiny bit it makes contact electrically but no part of the actual parking brake is applied.
It boils down to one simple thing? Do you believe in personal responsibility? If you believe in personal responsibility do you see a cut off after which the corporation is enabling and should be held liable? If you do not believe in personal responsibility then should we even be allowed cars or autonomy at all?
walter at January 3, 2017 8:32 AM
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