A family that lost a child in a car crash is suing Apple for failing to implement a patented feature that would have prevented drivers from being able to use the FaceTime app while at the wheel iStock

A family is suing Apple for not implementing a patent that would have made it impossible for drivers to use the FaceTime app after a child was killed in a car crash in Texas.

James and Bethany Modisette and their two daughters were driving along the Interstate I-35 motorway on Christmas Eve in 2014. James had slowed down due to slow-moving traffic from an earlier accident, when another car driven by Garrett Wilhelm slammed into their car at 65mph.

James and his younger daughter Moriah, 5, were severely injured and had to be airlifted to hospital after emergency workers managed to extract them from the car with great difficulty, and Moriah later died from her injuries.

An investigation later found that Willhelm had been speaking to someone on his iPhone 6 Plus using the pre-bundled iOS video chat app FaceTime at the time of the crash, and that the app was still running even as emergency workers struggled to remove the child and her father from their car.

It might seem a bit broad to blame the iPhone maker for the accident, but in their lawsuit, the family argues that Apple is responsible because it sought a patent in December 2008 that would make it possible to "lock out" any drivers who tried to use FaceTime on an iPhone while driving an automobile.

Apple patented a way to stop people using the iPhone while driving

According to Courthouse News, the patent was granted by the US Patent and Trademark Office in April 2014 but it was never implemented in the app. The family argues that the injuries were sustained due to Apple's "failure to install and implement the safer, alternative design".

The lawsuit explains that the patent filed by Apple described, among other things, a lock-out mechanism configured to disable one or more iPhone functions when the motion analyser picks up that the iPhone user is travelling at a speed over a set predetermined limit.

The family argues that Apple provided facts relating to the risks of car accidents happening due to distracted drivers as part of supporting evidence in order to encourage the US Patent and Trademark Office to grant the patent.

The facts listed in the Apple patent application, reported at the time by IBTimes UK, included statistics about the number of drivers who died from text-driving accidents, and the fact that texting while driving reduces a driver's reaction time by about 35%.

The lawsuit claims that statistics like this, showed that Apple understood the risks, however it still did not implement the feature when it launched the iPhone 6 Plus in September 2014.

"Plaintiffs allege that even though Apple has recognised for years prior to the accident at issue the compulsory, addictive and dangerous nature of iPhone usage by drivers, it has nevertheless voluntarily and intentionally failed to implement this technology," the lawsuit states.

"At the time of the collision in question, the iPhone utilised by Wilhelm contained the necessary hardware (to be configured with software) to automatically disable or 'lock out' the ability to utilise Apple's 'FaceTime' application. However, Apple failed to configure the iPhone to automatically 'lock out' the ability to utilise 'FaceTime' while driving at highway speeds, despite having the technical capability to do so, and the knowledge that the use of the iPhone while driving at highway speeds created and unreasonable risk of harm to users and innocent bystanders."

Plaintiffs claim Apple is just as responsible as the other driver

The lawsuit argues that since Apple knew that there was a risk that a driver would one day use the iPhone while driving and that there was a danger of a car accident, that Apple breached its duty of care to the plaintiffs by not designing the iPhone 6 Plus' operating system to be safe, meaning that it is just as liable for the accident as Wilhelm.

And even more damning, the Modisettes point out that the iPhone 6 Plus is still on sale and the same feature preventing use of the iPhone while driving still hasn't been implemented in any version of iOS despite their car accident in 2014.

The family is suing Apple for general negligence, gross negligence as well as product liability. They are seeking economic damages relating to James' medical expenses as well as his and his wife's past and future loss of income due to the physical pain and mental anguish caused by Moriah's death and the accident. The Modisettes are also seeking damages for the wrongful death of Moriah and their legal costs.

In November, the US road safety administration issued guidelines to smartphone manufacturers dictating that they must develop a software feature that prevents their smartphones being used while driving, after lorry driver Tomasz Kroker was found guilty of killing a woman and three children in a UK crash caused by him looking at his mobile phone.