Products Liability and the Self-Driving Car: Supplier Liability for Defective Electronics or Software in the Autonomous Vehicle

November 25, 2016

courtroom juryMass tort litigation may well be in the future for the self-driving car, a/k/a the autonomous auto, based upon product liability claims against the vehicle manufacturer, or a supplier of a component.  This would come about if there was a malfunction in the electronics or software of vehicle, leading to injuries or property damage.

Although the autonomous car has yet to be commercially sold, it appears that it is just around the corner. Already we do have experimental versions on the road.   But actually what allows a vehicle to move fully on its own is only a small advance over the electronics and software utilized in new vehicles today for other purposes.

Today’s vehicle has many computers on board, using a great amount of software, and many miles of electronic wiring.  ESC—electronic stability control—works to brake your car and individual wheels on it, if its sensors perceive a problem.  My vehicle also had collision sensing in it, car spacing, and even will warn me if I am moving out a lane which has the usual white markings.

Auto product liability law is already well positioned and advanced enough to handle any claims that arise from failures in the electronics of a vehicle.  This would include not only, on the active or positive side, a flaw which induced an accident but also, on the passive or negative side, a defect which failed to protect against an accident.

Thus there have already been many suits based on malfunctions  in the electronics of a vehicle, often due to a programming error in the software.  A current example is the gear shifter device in the Grand Cherokee Jeep, where users believe they have the car in park but it is in neutral.    Other types of litigation has involved failure in the systems relating to airbags (failure to fire, or, conversely, firing when there was no cause for it), and sudden acceleration attributed to a computer glitch.

Within the field of auto product liability one should not forget the crashworthiness doctrine, which is recognized in many states. This is the duty to make the car reasonably safe in the event of a collision.  An electronic failure, e.g., the failure of an airbag to deploy due to some software glitch, would then raise the issue of liability under the crashworthiness rubric.

With the coming of the autonomous vehicle, however, some groups in the auto industry are seeking an innovator’s type of protection or immunity from suit.  After all, they argue, we are doing a benefit to society, since studies show that there will be less accidents, injuries and deaths when autos can proceed autonomously.

We may well see legislation proposed in various states to grant immunity from suit or at least caps on damages, when there is a proposed suit against the manufacturer of the auto or its component parts.  (Michigan in 2013 created immunity for the manufacturer if a third party added on any self-driving features.)

The obvious argument against immunity is one I have presaged above.  We are already in the process of applying ordinary product liability law (strict liability, negligence and breach of warranty) to auto accidents where the flaw is in the electronics. A defect in the software of a fully autonomous car should be treated as one would now in a semi-autonomous vehicle, such as in the Tesla and other advanced cars.

Recently, we have a number of very large mass tort liability MDL cases involving auto products.  This includes the Takata airbags (MDL 2599, S.D.Fl.) and the GM ignition switch (MDL 2543, S.D.N.Y.).  And even though it did not involve personal injury, one should mention to the VM emissions litigation (MDL 2672 N.D.Cal.).  A major flaw in the electronics in a self-driving car which produces or allows accidents may therefore become an MDL as we move along.

Titles by This Paul Rheingold