iFault: Should Apple Be Implicated in Distracted Driving Injuries?

By Michael GrossmanJanuary 09, 2017Reading Time: 9 minutes

Most people are passingly familiar with the psychological theory of classical conditioning; it's the process behind the famous "Pavlov's Dog" experiments. In that classic example, the researcher takes an object of strong positive stimulus (food) and an object of neutral stimulus (a ringing bell). Over the course of the experiment, the dog is neurologically conditioned to anticipate feeding upon hearing the bell ring. This further triggers a physiological response in the form of salivation.

Every ringtone, message notification sound, and vibration sound triggers a Pavlovian reflex in the phone's owner--a twitch response to take the call, view the text, check Facebook. We do it at our work desks, at the dinner table, during conversations, and even behind the wheels of our cars, which is exactly where the case I want to talk about today came from. An iPhone user watched his screen better than he did the road, with tragic results. But should Apple be held responsible for any portion of that driver's distraction? Let's look at the case.

What Happened?

The event in question actually occurred in late 2014, but its repercussions have echoed through the ensuing years to where we sit today.

On that fateful Christmas Eve, the four members of the Modisette family were southbound on Interstate 35 West, just north of Dallas. James and Bethany Modisette, along with their daughters Isabella and Moriah, had stopped their Toyota Camry in the highway's left lane, waiting at the back of a line of traffic as it slowly moved past a DPS traffic stop a short way down the road. As the vehicle idled, it was struck by a Toyota 4Runner driven by 21-year-old Keller man Garrett Wilhelm, who was traveling at approximately 65 miles per hour at the time of the collision. Allegedly headed from Gainesville to his parents' home in Keller, Wilhelm reportedly ignored the stopped traffic because he was distracted by Apple's FaceTime app, a video-chat program available for the iPhone.

At the time of the crash the SUV rolled over the driver's side of the Camry. 5-year-old Moriah Modisette was killed in her booster seat on the car's left passenger side. Her father James, the driver, was critically injured; mother Bethany and sister Isabella were also seriously hurt by the crash.

In December of 2016, the Denton City Council voted to expand a citywide prohibition on texting while driving to include virtually every use of handheld cellphones behind the wheel. Texas' state government remains intractable in its refusal to ban texting and driving on a statewide level. It is one of only four states without such legislative measures.

Since the crash, Wilhelm has been charged in Denton County with felony manslaughter, and awaits a jury trial in early 2017. Meanwhile, the Modisette family has filed suit against Apple Inc. for providing the distraction that kept Wilhelm's eyes off the road. The plaintiffs' lawsuit contends that the company should be held liable for its failure to lock users out of distracting apps while behind the wheel. Furthermore, the suit contends that such accommodation is not even implemented within the program.

The suit was filed in state Superior Court in Santa Clara, California in December of 2016, almost exactly two years after the wreck. Its language includes the following to explain the family's hardship in the collision's immediate aftermath:

"Bethany Modisette and Isabella Modisette visually and audibly witnessed rescue workers' grueling efforts to extract James Modisette and Moriah Modisette from the mangled vehicle, as well as evidence of their ... serious and life-threatening injuries and struggles to stay alive," the lawsuit says.

Can Apple Be Considered Liable for the Crash?

This entire incident is deplorable, of course. I've written several times about the problems with distracted driving and their continually-increasing prevalence on our streets and highways. This is a textbook example of that problem. With that said, such a claim would likely not see much traction in most states. There are some additional factors to consider in this specific example, though.

One complication is the fact that Apple had long considered implementing exactly the kind of technology it is now accused of failing to apply. In 2008, the company filed for a patent involving software that would lock users out of FaceTime if and when they traveled above a certain speed (Apple purchased the rights to Facetime and tinkered with its technology and network compatibility years before its integrated release with the iPhone 4 in 2010). The technology utilized the phone's ability to analyze movement and scenery through its camera, and ostensibly would prevent users from activating FaceTime or engaging in video chats while operating a vehicle. It's actually similar to software that was integrated into Pokémon Go to limit the possibility of people hunting monsters at 60-plus miles per hour.

Apple's conscious decision not to implement those safety features might partially open the door to an assumption of liability, but even then, the theory has holes:

  • Apple could contend that it is not responsible for preventing dangerous misuse of its product. It is true that a company has a duty to its end-users to create a product with known risks mitigated or eliminated. This applies to hazards of both regular use and foreseeable misuse. The existence of the 2008 patent reinforces the idea that Apple was aware of potential misuse of FaceTime, and had found a way to counter its dangers, yet elected to release the final product without these restrictions.
    No matter how you feel about government intervention, it has done its damnedest for the past several years to warn us of the dangers of distracted driving. Their campaign doesn't always stop people from playing the odds, but once motorists flout the law and their own common sense, it is hard to put the blame on the shoulders of a company who created a product for the tens of millions of people who use it correctly.
    Depending on where a driver lives, it is likely that at least some prohibitive laws have been passed on the state and/or municipal levels to keep them from ignoring the road in favor of their phones' screens. These laws may not stop drivers from performing the illegal behaviors, but once they break the law, the burden of the consequences are more likely to fall on their shoulders.

  • A FaceTime user in a vehicle isn't necessarily the driver. Car rides can get pretty boring, depending on traffic and duration. One selling point of smartphones is the diversity of remedies it offers for bored people. If FaceTime's "safer" version is designed not to activate or work when it detects scenery whizzing by at some specific rate, though, a passenger who wants to use the app may discover he or she is unable to do so. Apple may not consider it in users' best interests to restrict the proper use of a product on the chance of improper use. Also, if they do that to one app, where do they stop? A driver can use almost any app behind the wheel. If Apple can be held liable because FaceTime doesn't restrict circumstantial use, then what about Facebook? Doodle Jump? Snapchat? To really hold the hands of its least prudent users, the company would have to disable the phone entirely while a vehicle's engine is on, and again, any passengers would likely be similarly denied use of their eight-hundred-dollar pocket computer. That's bad business, and it's not Apple's imperative to be the safety net when a user leaps from the lofty height of good sense.
  • Apple's release of the "unsafe" FaceTime is not the proximate cause of injury. When determining liability in a personal injury case, one of the key elements that must be determined is the proximate cause of the plaintiff's injuries. Put another way: Of the sequence of events that led to the incident, only one can be considered the most direct reason the plaintiff was hurt. Establishing the proximate cause of the injury then leads to establishing the party liable for it.
    Traced backward from the crash, the relevant contributing factors when establishing liability might array themselves thusly:
    1. Injurious/fatal collision with Modisette vehicle
    2. Wilhelm distracted by FaceTime while operating SUV
    3. Wilhelm chose to use FaceTime app while driving
    4. Wilhelm chose to drive his SUV
    5. Wilhelm bought a new iPhone 6 Plus with FaceTime (between Sep. and Dec. 2014)
    6. Apple created iPhone 6 Plus (Sep. 2014)
    7. Apple's patent application for "lock-out" technology was approved (early 2014)
    8. Apple releases FaceTime app (June 2010)
    9. Apple filed to patent technology to lock users out of FaceTime while driving (2008)
    10. Apple developed and refined the initial FaceTime prototype (2007).

    As you can see, at least four major contributing events occurred between Apple's last direct contribution to the timeline and the point at which Garrett Wilhelm negligently collided with the Modisettes' vehicle. He, in full possession of his faculties and agency, elected to drive his vehicle while distracted by FaceTime, which he elected to activate during his journey. It is a far stretch to believe Apple should be responsible for an adult's decisions, however unwise.

This Case is Part of a New Wave of Liability Suits.

While this case made headlines, it's also part of a growing trend of suits that grasp somewhat beyond their reach. A similar case was also filed in Texas earlier in 2016, when a driver crashed into another vehicle while trying to check new messages on her iPhone. In that instance, the force of the collision killed two adults in the other vehicle and left a child paralyzed. The defendant was convicted of negligent homicide and sentenced to five years' probation. The family of the plaintiffs then filed a federal lawsuit against Apple for its failure to provide a product that blocked users from texting while behind the wheel.

Fully acknowledging that the event in question is tragic in the extreme, I must protest the basis of this Apple lawsuit. To posit that a technology provider is somehow enabling dangerous behavior simply by supplying a product strains credulity. While I will agree that manufacturers have a certain obligation to warn of the hazards of conventional product use, engaging with a phone while driving is a misuse of that product. In some measure the law takes into account what actions should be dictated by common sense; this guideline is called the reasonable person standard. I don't believe any adult in possession of his or her faculties genuinely thinks texting and driving is safe; much as anything, fiddling with an iPhone is habitual to the point of being addictive. It isn't so much that any driver is convinced there will be no repercussions from distracted driving, as they make a conscious choice to risk the consequences. Apple is not liable for an adult's decision to deviate from the reasonable person standard.

Consider the most appalling of online phenomena currently making the rounds: the Fire Challenge (it's exactly what it sounds like). Many companies make flammable liquids for a variety of personal, industrial, and commercial uses. That ubiquity gives people the opportunity to cover themselves in said fluid and set themselves on fire; unlike certain historic examples, the aim seems only to gain some fleeting Internet celebrity.

Keep in mind that for legal purposes, the "challenge" participants are considered to be of sound mind, no matter how much their actions might imply otherwise. Should Kingsford or Zippo be held responsible for the deliberate actions of these individuals? They did, after all, supply the means through which the people were burned. These atypical instances are not predictable when applying a reasonable person standard, however, and as such no one has suggested that the manufacturers of the items required to set fires--themselves inert and not harmful if appropriately used--should be held responsible for the irrational behavior of their users. The same idea applies to issues of questionable phone use. While Apple may have developed the technology to restrict certain applications, it is still users' deliberate choices to engage with the devices that cause the accidents, not the existence of the phones themselves.

Additional Fallout from These Cases

My own feelings aside, I know the claim's merits will be decided in court. In the meantime, though, the logic behind the lawsuit is troubling. If any of these claims finds some purchase, it could open the floodgates related to any distraction a driver might face while a vehicle is active. If the backbone of the claim truly is that any distraction of a driver should face legal sanction, not only smartphones will feel the pinch. After all, onboard navigation systems, car stereos, and even drive-thru windows all have the capacity to draw a motorist's attention away from his or her surroundings while a vehicle is active. The use of any of these represents a conscious decision on the part of the driver, but if smartphone-related distraction can be blamed on Apple, how long is it until Taco Bell is somehow liable for the SUV driver who doesn't put the car in neutral while leaning out the window to get his chalupas? Moreover, if I'm snacking on Funyuns as I drive and I lose control with one hand in the bag instead of on the wheel, does that mean that Frito-Lay somehow becomes my co-defendant?

There is economic and industrial implication behind the outcome of these cases, too. By setting a precedent requiring safety-related patents to be utilized instead of entrusting that decision to a company's discretion, creativity could be inhibited and innovation stymied. Apple has yet to release a formal statement about why it did not release the "safe" version of FaceTime, but it is possible that the company had what it considered a good reason. Their liability cannot be presumed any more than anyone's can; that would violate the protections afforded by American law.

I want to stress again that the incidents in question are terrible, and naturally I wish they had never happened. I have only the sincerest sympathy for the victims and their loved ones, and I don't want to downplay their suffering or deride their choice to seek damages. I set out today only to examine the theory of manufacturer liability with respect to distracted driving, and in the interest of observing the law as it is written, I have concluded that there may not be a great deal of recourse along those lines. The courts may disagree with me; time will tell. If they rule in favor of the plaintiffs, there may be extended implications, but if the public can't put their phones down of their own accord, perhaps we'd be better off with its distractions taken away from us.

That idea seems counterintuitive to citizens of a nation founded on the rights of the individual, but there are times where the surfeit of freedoms we enjoy in the U.S. cause us to confuse "I have certain rights as a citizen" with "I can do whatever I want, because freedom." The restrictions in question wouldn't be unconstitutional; driving a car--especially on public thoroughfares--is a privilege, not a right. Furthermore, when they obtain driver's licenses, motorists enter into a contract with the government whereby they agree to suspend some personal liberties while driving, for the sake of public safety. Thus, any arguments of Constitutional violation don't really hold much water.

In the meantime, third-party programs can be installed that disable certain features of a phone while on the road, such as texting and messaging apps. Even if on principle Apple should not be forced to limit the features of its products, conscientious drivers are encouraged to exercise self-control and undo their conditioning.