Modisette crash

Police said Garrett Wilhelm of Gainesville was on his way to visit his parents in Keller when he rear-ended a family's car on Interstate 35W on Dec. 24, 2014, in Denton. The Christmas Eve accident killed 5-year-old Moriah Modisette of Cross Roads and seriously injured three members of her family.

The decision on whether a Cross Roads family can pursue their case against Apple is headed to a California appeals court panel.

Lawyers for both the Modisette family and Apple filed extensive briefs in the California Court of Appeals 6th Appellate District in recent weeks. The case considers the family’s claim the tech company is substantially liable in the car crash that killed 5-year-old Moriah Modisette and injured her father, mother and sister on Christmas Eve 2014. At the time of the wreck, the driver of the SUV that hit the Modisettes’ car was using Facetime, a video chat application built into Apple iPhones, according to police records.

The family claims Apple could have disabled the app when users are driving and did not. The company denies the claim, saying product liability law doesn’t include that kind of responsibility for companies.

Moriah Morisette

Moriah Modisette, 5, was killed in a car wreck in Denton on Christmas Eve 2014.

The family filed the product liability lawsuit in Santa Clara Superior Court in December 2016.

In their brief, the family’s attorneys say the superior court judge erred in siding with Apple and dismissing the case in May 2017. They wrote that Apple’s attorneys made claims about the facts in the case that weren’t true or knowable and cited unpublished cases favorable to its side of the argument. They also claimed the judge misapplied the law in evaluating the case, including Apple’s claim that a product’s misuse can be a valid defense.

In addition, the family’s attorneys argued the new “Do Not Disturb” feature on iPhones bolstered their primary claim: Apple knew its product commanded people’s attention in an addictive way, and that needed to be addressed.

In 2008, six years before the wreck, Apple developed and patented technology that would lock drivers out of using their phone while in motion. But the company did not deploy the capability then.

The newest iPhone feature does not disturb drivers as it auto-replies to calls and messages.

In their brief, Apple’s attorneys said the judge was correct in throwing out the case, arguing the facts of the wreck in Denton County did not form a legal basis for a product liability claim.

They maintained the driver alone was responsible for using the company’s product in a safe way, court records show.

The judge was correct in ruling the “chain of causation” between the company’s conduct and the car wreck was too long to see the company as liable, Apple’s attorneys said.

In addition, the attorneys argued Apple’s new “Do Not Disturb” feature does not change that legal analysis of the chain of causation.

No oral arguments have been scheduled for the appeal.

Meanwhile, the manslaughter case against the driver, Garrett Wilhelm, remains unsettled in a Denton County district court after almost three years.

Wilhelm was indicted in August 2015. The case first was scheduled for a jury trial in September 2016. That trial date and three subsequent trial dates in 2017 and early 2018 were canceled. Prosecutors say they are waiting for assistance in accessing data on Wilhelm’s phone.

The latest jury trial date has been set for Nov. 5.

PEGGY HEINKEL-WOLFE can be reached at 940-566-6881 and via Twitter at @phwolfeDRC.

Recommended for you