Did Apple Kill The Little Girl?


A Christmas Eve tragedy from 2014 has sparked another ethically provocative lawsuit.

James and Bethany Modisette were driving through Denton County, Texas, on the evening of December 24, 2014, when they had to stop their car due to a traffic incident ahead of them on the Interstate. Their children, Isabella, 8, and Moriah, 5, were in the back seat, Everyone in the vehicle had a seat belt fastened.

Meanwhile, Garrett Wilhelm, idiot, was chatting away on his phone using the FaceTime app, and didn’t notice that the traffic ahead of him was stopped. His car rear-ended the Modisettes’ vehicle at 65 mph. Little Moriah was killed.

Now the Modisettes have filed a lawsuit against Apple, the maker of the app and the iPhone it was used with, citing a “failure to install and implement the safer, alternative design … to ‘lock out’ the ability of drivers to utilize the FaceTime application.” In the suit, the parents claim the company didn’t warn FaceTime users like Wilhelm that “the product was likely to be dangerous when used or misused in a reasonably foreseeable manner.”

This is a good example of a lawsuit that is not technically frivolous, because it seeks to make new law. It is, however, an unethical law suit (not for the lawyer to bring, but for the Modisettes.)  Sure, they want to find the deepest pockets they can to get at for compensation for the horrible incident, but their argument is flawed. FaceTime isn’t intended to be used while driving, and everyone knows it, or should know. People also shouldn’t  be playing video games or trying out Kama Sutra positions while driving. If this suit succeeds in holding Apple liable, why shouldn’t all distracted driving cases lead to damages assessed against the makers of cell phones or whatever else the driver was using?

Stupid people crash putting on lipstick while driving. Should there be a warning on compacts and lipstick: “It is dangerous to apply make-up while driving”?  I’ve seen people driving take selfies. I’ve even heard of  drivers reading or watching videos from a Kindle while at the wheel. Is it Amazon’s duty to make sure, somehow, that a Kindle shuts  down while an insane user is driving?

Yes, this reminds me of gun manufacturer lawsuits. Apps don’t kill people. Negligent drivers kill people.

All these “safer, alternative designs” to protect morons from their own negligence and put the burden on manufacturers costs money, raises prices, and means that you and I have to pay for Garrett Wilhelm’s inexcusable carelessness. Worse, the lawsuit’s logic, if successful, might even allow him to sue Apple, and win.  After all, it has a duty to save him and his victims from him, right? Attempts to sue the person conversing with the driver in these cases have failed so far, but they will be tried again, too.

One entity caused the death of this little girl. One: a criminally careless man named Garrett Wilhelm. It wasn’t the iPhone’s fault, or the app, or Apple, or Wilhelm’s non- driving FaceTime friend, or TV stations for not showing sufficient PSAs about not driving distracted, or Wilhelm’s parents for raising a jackass. Lawsuits like this one just continue to blur public understanding of what accountability and personal responsibility mean. No sympathy for the family should divert a jury from the plain fact that in this case, the big corporation did nothing wrong, and should not have to pay damages.


Pointer and Facts: Advice Goddess Blog

34 thoughts on “Did Apple Kill The Little Girl?

  1. Didn’t Cessna get successfully sued some time back because some twat had a car crash whilst watching a single engine Cessna with engine failure? Cessna stopped making single engine aircraft for about 20 years.

    I refer you to Douglas Adams book ‘So Long and Thanks for All the Fish’ where Wonko the Sane decides he is the last sane person on earth after reading usage instructions on a packet of tooth picks!

  2. Wilhelm is only guilty if personal responsibility and accountability are still recognized determining factors…which unfortunately seems rarer and rarer.

  3. I see people texting and driving quite frequently, and lately people playing Pokemon Go. They’re always either 15km or more under the speed limit, or far over it, and invariably weaving. I’ve seen them bracing their smart phones in the middle of the steering wheel, or with an arm out the window so they can look at the phone and road at the same time. Every time there’s an accident, there’s an outcry that Pokemon Go should be banned, smart phones should be banned, but all the laws you can concieve of won’t fix stupid.

    Pokemon Go now puts up a screen you have to click through if you’re going above a certain speed. It says ‘Do not drive while playing Pokemon Go’ and you’re given the option to click ‘I’m a passenger’ and continue the game (as a lot of people apparantly play on public transport while commuting). However, if it comes up more than twice, you’re blocked from playing. You can’t get anything from Pokestops, and all Pokemon disappear. The technology seems to be available already, using GPS. Perhaps a tweak in the application would not be too difficult. With something like Pokemon Go, where you’re chasing/gathering things, it’s foreseeable that someone might try to cheat and hit as many Pokestops as possible with a car, but I don’t think Apple could necessarily foresee someone using FaceTime while driving. I don’t think they should be able to sue Apple.

  4. I agree. Another point to be made is if the negligent driver’s financial liability is constrained by his ability to pay -via insurance- the lawsuit does little to discourage future negligent behavior. Informed consent should not be a required prerequisite to common sense.

  5. I think that people need to be held accountable got their actions and the consequences. Apps, games, social media should not have to warn people not to drive while utilizing. It’s common sense. If these individuals are so negligent perhaps they should not have the right to operate a vehicle or own a “smartphone”. Apple never intended for an innocent girl to die. People need to be held accountable rather than point their finger and hire a savvy lawyer to sue Apple or any other corporation for human “stupidity”.

    • “Ooops. Just saw that I posted without a title! Sorry. Fixed.”

      I’m so glad you said that. I kept looking through the post to find the relevance of the number. Was that the number of the post? Are you really up to three thousand something? No, that would be half what you’ve already reported. Now, I’m intrigued.

      • No. Wait a minute. I just found the original title: 3 6 5 0 5. It’s not three thou; it’s thirty-six thou. That would be more than five times the number of posts you mentioned in your commenters’ rules revision. Even if you added in all your comments on the comments . . . . jeez louise!

  6. I think the Achilles Heel will be that the lawsuit says Apple should disable FaceTime when the phone is moving more than 10 MPH. Apparently Apple considered and rejected doing this because if someone is a passenger in the vehicle, FaceTime use is legal and safe.

    They will need 10 or more people who won’t see this as a slippery slope. 10 people who wouldn’t be pissed off if their phone was disabled any time they were a passenger who couldn’t text, surf the web, use GPS, etc.. I don’t consider that likely.

    • That’s exactly the thing. My 12yo uses Facetime while riding in the car sometimes. She also takes photos, video, texts, plays games, etc. There is nothing wrong with any of that as a passenger.

      Unfortunately, it’s hard to fix stupidity of someone who will drive while doing Facetime. Amazingly, I don’t even think it’s illegal in Florida. There are only anti-texting laws on the books as far as I know. You can talk and handhold a cellphone while driving. Not sure if that covers doing video, but don’t recall seeing anything about it.

  7. Your take is exactly right, and this is exactly why we need tort reform. There should be a mechanism for these lawsuits to be dismissed very early in the process. While part of me would also like to see people sanctioned for seeking “deep pockets,” I understand the reality that it’s also not a good objective to discourage valid lawsuits by chilling them.

    I grieve with the Modisettes for the senseless loss of their daughter, but I am disgusted by the lawsuit. I wonder if their lawyer didn’t talk them into it — I hope not. I hope he tried to dissuade them from going forward, but I’m skeptical.

  8. This is a good example of a lawsuit that is not technically frivolous because it seeks to make new law.

    That is the problem.

    The province of making new law is reserved for the legislature, and the legislature alone.

    • I think what he’s saying, and correct me if I get this wrong, Jack, is that the lawsuit is intended to coerce legislators into making a new law, not the courts.

      • Point of clarification: We’ve had statutory and common law operating side by side in the English (and American) [common law] system for centuries. If you want just legislation, you need to move to Louisiana or some other civil law place like France or Spain.

  9. I agree with most of this except the gun comparison. The Facetime app isn’t designed to cause car crashes whereas guns are, in fact, designed to shoot people.

    (You can stop writing now Tex, I’m not defending the gun lawsuits, I’m simply arguing with Jack’s analogy.)

    • The analogy is only that the legal theories behind lawsuits are the same: punish the manufacturer for misuse of the product. Guns are designed to legally protect people who need protecting.

      • I think this is a very important point. Guns are not designed for criminal purposes. They are designed to efficiently and accurately deliver projectiles on target for whatever purpose the user can find for them. Do some users use them for criminal purposes? Sure, but that’s not a design feature, nor an intention of the design.

        Similarly, the iPhone Facetime app is designed to deliver a visual component to communication. It is not, nor should it be designed to protect the public from careless users who are incapable of safely operating a motor vehicle.

        Mr. Miyagi said it best to Daniel LaRusso in The Karate Kid: “Just remember, [drivers] license never replace eye, ear, and brain.” Facetime won’t replace them either.

      • Yes, but you didn’t finish the sentence — “to legally protect people who need protecting [by shooting other people].” Nothing in the Facetime app assumes that they will be used in car crashes.

        Your analogy also fails because some weapons are designed not just to protect people but to potentially overthrow governments. To the extent that the government was trying to shoot you in the head, then it falls under the rubric of “protect”, but I would argue that overthrowing the government because of say, its health care policy, does not.

        • Unless there’s been a sudden glut of Liberators flooding the streets, the overthrow governments bit shouldn’t be applied to guns.

    • ” I hope he tried to dissuade them from going forward, but I’m skeptical.”

      I am too, Glenn. One time, I needed a criminal defense lawyer, so I sought out one of the most renowned lawyers in the area. He Kicked my case from him ($800/hr) down to the most junior associate, 2 years out of law school and very obviously very green. My wife and I were willing to find the money for the senior partner, but we ended up paying $7500 for the junior associate.

      I spent one hour with him, and my wife and friends spent a half-hour with him, who took the initiative to hire them and give a character reference on my behalf. Maybe a half-hour on the phone. We just had a really uncomfortable feeling about the inexperience, and worse, he seemed a little too cavalier about the whole thing, so we found another attorney.

      We had no expectations about any specific amount of a refund, and as far as we knew at the time, we might not be entitled to any, but we felt we had no choice. When we very politely and as tactfully as possible told him that we had to go with another firm (I told him things like the new lawyer was on personal terms with potential judges and prosecutors in the area and other such things), he ended up mailing us back a check for $5,000

      . I very politely thanked him at the time he told me, but I can’t help thinking that $2,500 was a little steep for an hour and a half of face-time, and maybe a few hours of research, especially since he knew that it hit us particularly hard at the time, and they looked like they were going to get much worse. I know that our need doesn’t have to be a factor in matters like this, but again, $2,500? For that? Seems a little unethical and opportunistic.

      It took away a bit of my respect for the profession, to be honest. I still have a lot of that respect, though, nonetheless. I mean, Clarence Darrow, Gregory Peck, Jack Marshall, and other fictitious characters. 🙂

      • ” The Facetime app isn’t designed to cause car crashes whereas guns are, in fact, designed to shoot people.”

        Sorry. You might not be at all anti-gun, and just making a comparison. There are people, though, for whom this is just one of their many appeals to emotion disguised as logic concerning guns.

  10. What does the average auto insurance company pay when their insured causes a death? My GEICO policy pays out a max of $350,000 if I injure (or, I presume, kill) someone with my car. Not enough to compensate for a death, but frankly, if someone is dead, why the need for “deep pockets?” It’s not as if the family will be taking care of an invalid for the next 50 years.

    So in this case I see the suit to the “deep pocket” defendant as purely punative on the plaintiffs’ part. And the ‘making new law’ reasoning is a rationalization, and the lawyer should not have taken the case. He might not be disciplined for doing so, but is he really acting ethically? He wants his 35% of the settlement, and likely doesn’t care about ‘new law’ (and I agree with other respondents ideally this should remain in the sphere of legislatures).

    This doesn’t strike me as a strict product liability case either (a la mesothelioma and Johns Manville). It isn’t about consumers innocently using a product in good faith which then made them gravely ill. It is about one consumer who stupidly and selfishly uses a product in a dangerous situation — against all reason — who causes a death.

    If the plaintiffs want to prove a point, they can lobby for stiffer penalties in all states for people using cell phone and other hand-helds while driving. This is a real need, and could have astonishing success. Look at what Mothers Against Drunk Driving did. And the Amber-Alert law (little Amber’s family and friends spearheaded the move for this legislation). These are cases where individuals changes our culture forever, and for the better.

    Alas, I think that these plaintiffs, in their grief, figured they might as well get some money out of this to ease their pain.

    • So in this case I see the suit to the “deep pocket” defendant as purely punative on the plaintiffs’ part. And the ‘making new law’ reasoning is a rationalization, and the lawyer should not have taken the case. He might not be disciplined for doing so, but is he really acting ethically? He wants his 35% of the settlement, and likely doesn’t care about ‘new law’ (and I agree with other respondents ideally this should remain in the sphere of legislatures).

      Even if he does agree with the new law, does that justify taking such a facially flawed case?

      Perhaps, I guess, but I’ve always been dubious of using the legal system for activism, even in worthy causes, by bringing meritless cases in hopes of surviving a motion to dismiss and getting to a jury trial where, at worst, the case will be radically elevated in the public conscience.

      That doesn’t seem to me to be the correct use for our legal system, but no doubt, it is a rather common one.

    • “. Not enough to compensate for a death, but frankly, if someone is dead, why the need for “deep pockets?” It’s not as if the family will be taking care of an invalid for the next 50 years.”

      Family breadwinner dies and spouse is a stay-at-home parent with a couple of kids, a 15-year old high school diploma and no job history. The insurance will pay to bury him but not a lot beyond that. That’s a possible scenario that faces many American families.

      Obviously, in this specific case, we’re talking about the loss of a child, not the primary provider, but there is an argument to be made for holding an irresponsible company accountable for product that results in someone’s death. Again, this particular situation doesn’t seem to be applicable, but in other cases, this type of legal action could be justifiable.

  11. This guy . . . THIS GUY . . . is the reason that the GPS system in my car locks itself out when the car is moving more that 20 MPH and puts up a nasty nanny-warning about how it’s unsafe to use a thing that’s built into a car . . . while in a car.

    Okay, I get that the driver should be paying attention to the road. Of course.
    But why can’t the person in the passenger seat use it either?


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