Product Liability Update

Reprinted and/or posted with the permission of the American Bar Association, July 23, 2014

Fifty years ago, movie magic brought us the story of Jim Douglas, a down-on-his-luck race car driver who woke up to find a white Volkswagen Beetle parked in front of his house. He later discovered that the car, nicknamed “Herbie the Love Bug,” had the ability to operate autonomously and drove to his house in the middle of the night. Hijinks ensue as the car uses its brain power to win races and help Douglas get the girl of his dreams.

Now, this once-treasured film may become somewhat of a reality. Autonomous vehicles, or cars capable of driving themselves, have recently taken to the streets. Google’s version of these “autobots” (as I like to call them) have logged nearly 700,000 miles up and down the coast of California, and both the National Highway Traffic Safety Administration (NHTSA) and numerous states have either passed or proposed legislation for regulating these seemingly futuristic vehicles. While many are still skeptical of driverless cars, the advantages of autobots are clear. Thousands of people die each year from car accidents, and according to a NHTSA report, 90 percent of these accidents are believed to be caused by driver error. With autobots driving, however, these numbers will disappear because cars can’t get intoxicated, fatigued, or distracted. Autobots could revolutionize road safety.

That said, autobots present a barrage of legal questions that must be answered—especially in regard to liability. Here’s the problem. Like every other computerized system, autobots will run on complicated operating and GPS software. This software will need to be updated routinely as new systems are added and glitches are corrected. Although autobot manufacturers will likely be able to “push” software updates to the vehicles, similar to how Apple pushes updates to iPhones, drivers will likely need to manually link their autobots to the Internet and accept the software updates to allow them to download. While simple in theory, this could quickly become problematic. We are all guilty of delaying those important software updates on our electronic devices. But unlike my personal computer, failing to update an autobot’s operating or GPS system could cause malfunctions that result in fatal accidents.

This is particularly true if the driver has neglected to update the software for multiple years. Imagine an autobot operating with 10-year-old outdated software. During these 10 years, the autobot manufacturer has provided multiple software updates, but the autobot owner has simply refused to install them. An accident occurs, and the autobot owner later sues the manufacturer claiming that the vehicle was defective because the outdated software caused the accident. Who is liable?

Clearly, it would upend the auto industry if autobot manufacturers were held liable for outdated-software-related accidents in situations where they diligently provided their customers with adequate software updates and it was the driver who neglected to accept the updates. Therefore, states should consider enacting a statute of repose applicable to autonomous vehicle liability. Unlike a statute of limitations, which begins running at the time an injury occurs and dictates the amount of time one has to file a claim, a statute of repose is triggered by an event, or the completion of an act, and delineates a time period in which a right may accrue. If an injury occurs outside of that time period, it is not actionable. Thus, a statute of repose offers greater certainty for manufacturers, as the time could run out before an accident ever occurs.

In this context, the statute of repose would bar all lawsuits based on strict products liability or negligence against an autobot manufacturer brought, for example, five years after the owner of an autonomous vehicle failed to properly update his or her autonomous vehicle’s software—if a postsale software update was made available by the manufacturer. Assume Jim Douglas buys a brand-new “Herbie” autobot. Soon, the autobot manufacturer provides him with a software update, which he fails to accept. Five years later, Douglas has still not updated his autobot when he is in an accident that occurred while his autobot was driving autonomously. Here, Douglas would be barred from bringing suit against the autobot manufacturer arising from the autonomous features of the vehicle. While some might contend that this protects manufacturers to the detriment of car owners, in reality a statute of repose protects all of society for two reasons: it incentivizes autobot owners to keep software updated, which prevents software-related accidents, and it protects autobot manufacturers from open-ended liability against those owners who refuse to update their vehicles.

Simply put, autobot owners would place others at risk if they failed to update the operating software on their vehicles, and autobot manufacturers should not be the ones to bear responsibility for such carelessness. As long as owners downloaded the updates, they could preserve a claim against the autobot manufacturer in the event of a software malfunction. This is a simple solution to ensure that minor acts of negligence do not catapult into catastrophic injuries. Autobots might still be a ways away from Herbie the Love Bug, but vehicles in the early stages of autonomous technology will be rolling out in the near future. It is crucial that when they do, the legal framework is already in place to protect both the public and manufacturers.