While many of us know that texting, or using our iPhones for FaceTime while driving is dangerous, many of us will nonetheless ignore those risks and use our iPhones anyway while driving. When innocent members of the public are injured or killed by drivers using iPhones should Apple be legally responsible? That is precisely the question two families want courts to resolve in their favor. On Christmas Eve in 2014 Moriah Modisette, a 5-year old girl, was killed and members of her family injured when a 22- year old man slammed into the rear of their car. He was allegedly distracted by using FaceTime on his iPhone. In April of 2013 Sammy Meador, a 5- year old boy, was paralyzed and his grandmother killed when a 21-year old woman driving a large SUV slammed into the rear of their car. She was allegedly distracted by texting on her iPhone.. Two families, unrelated, yet disturbingly, tragically and inextricably connected by Apple’s iPhone.
Each family filed a lawsuit against not only the driver but also Apple. In essence, they are alleging that Apple had the ability to “lock-out,” or disable texting and FaceTime for drivers, and had Apple done so, these tragedies would never have occurred.
Is it fair to make Apple responsible for drivers’ decisions to use the iPhone in a risky manner? In making that judgment courts examine whether a party was aware of the potential harm that could occur from the use of its product, the foreseeability that harm would result under the circumstances and whether it was feasible to make the product safer.
In court filings each family referenced a patent filed by Apple in 2008 and which was granted in 2014, US 8,706,143, “DRIVER HANDHELD COMPUTING DEVICE LOCK-OUT.” This technology was described by Apple as a device which would provide a “lock-out mechanism to prevent operation of one or more functions of handheld computing devices by drivers when operating vehicles.” In support of the patent Apple stated that “texting while driving has become a major concern of parents, law enforcement, and the general public. An April 2006 study found that 80 percent of auto accidents are caused by distractions such as applying makeup, eating, and text messaging…”
Certainly most of us are aware that using an iPhone while driving for certain tasks is dangerous and it would appear from the patent filing that Apple was aware of those risks and that it had the ability to make the I-phone safer by incorporating the “lock out” mechanism. Apple also described in its patent that it could distinguish between a driver’s use of the iphone from that of passengers, so that a passenger’s use would not be limited.
Most recently a class action against Apple was filed under California’s Unfair Competition Law. The lawsuit seeks an injunction prohibiting the sale of any iPhones in California without inclusion of the “lock-out” mechanism and an injunction requiring Apple to update all previously sold iPhones with that technology. Apple’s failure to do so to date is described in the case “unfair business acts and practices, “because Apple’s motive was to put “ profit before consumer safety.”
Implementation of Apple’s patented technology to lock-out dangerous use of the i-Phone while driving would prevent tragedies similar to those involving 5-year olds Sammy and Moriah. Whatever one’s belief in Apple’s legal responsibility for the horrific crashes involving two 5- year old children and their families, or under California’s Unfair Competition Law,, isn’t it Apple’s moral responsibility to act to prevent more tragedies? I bet many of us would be willing to give up potentially dangerous use of our phones while driving if we knew that those driving next to us were similarly denied that temptation. Apple has been a leader in the technology revolution and has profited immensely from many of us becoming slaves to our phones. Apple can and should now be a leader in preventing senseless distracted driving crashes and incorporate its “lock-out” mechanism in all iPhones.
Joel Feldman is an attorney in Philadelphia with the law firm of Anapol Weiss. After his daughter Casey was killed by a distracted driver he obtained a masters in counseling and co-founded EndDD.org (End Distracted Driving) with his wife Dianne. Joel speaks at businesses, community events and schools and coordinates a volunteer network of speakers that provide talks without cost to schools across the country. For more information about scheduling presentations or learning what you can do to end distracted driving e-mail Joel at info@EndDD.org.
A partner of the Anapol Weiss law firm in Philadelphia, PA, Joel Feldman has successfully represented injured victims and families for more than 30 years. Feldman founded End Distracted Driving (EndDD) after he suffered the loss of his daughter Casey in a distracted driving accident in 2009.