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 auto crash in Texas.

The lawsuit quotes several studies into the use of tech while driving, including one for telecoms firm AT&T which found that 43% of teenagers admitted to texting or emailing while driving.

James Modisette and his family were on the road when an SUV hit them from behind leaving him in critical condition, and his 5-year-old daughter, dead.

It was reported that young girl was killed by a driver apparently using Face Time on his iPhone, her parents in reaction have launched a lawsuit against iPhone-maker Apple Inc.

From the lawsuit attached below as a PDF, the Modisette family highlights that Apple had filed a patent for "lock-out" feature for FaceTime in instances such as when driving. The lawsuit points to a patent for a feature for drivers filed by Apple in 2008. The lawsuit obtained by California television KTLA claims police found FaceTime running on the iPhone of the driver who struck the Modisette family at 65 miles per hour. The family argues that the injuries were sustained due to Apple's "failure to install and implement the safer, alternative design".

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"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".

The patent, which was issued by the United States patent office in April 2014 aimed to lock out users while they were driving.

Prosecutors accused Wilhelm of video chatting in his SUV when he slammed into the back of the Modisette's vehicle which had stopped on Interstate 35 along with other vehicles because of an incident ahead of them, the newspaper said. Driver Garrett Wilhelm will stand trial for a manslaughter charge related to his involvement in the high-speed crash next month.

"At the time of the collision in question, the iPhone utilized by Wilhelm contained the necessary hardware (to be configured with software) to automatically disable or "lock-out" the ability to use [FaceTime]".