How Will Product Liability Consider Autonomous Vehicles?

As the Journal of Law and Mobility reports, the 2016 fatal collision of a Tesla driver using autonomous driving mode launched a national conversation about product liability and autonomous vehicles. Subsequent incidents have only furthered these questions.

In Virginia as elsewhere in the US, product liability lawsuits have rested on legal assessment tools to determine whether products are defective. Some scholars speculate which tools may be useful for claims concerning autonomous vehicles.

Consumer expectations test

Product liability has traditionally rested on the “consumer expectations test.” According to this legal tool, a court may determine whether a product is defective by measuring it against the expectations of a standard consumer. For example, if your new shoes fall apart from ordinary walking, this doctrine could define them as defective because this violates a reasonable consumer expectation.

Over time, this test has worked effectively for hundreds of product liability lawsuits. But over time, highly technical products began to enter the market, for which consumers did not yet have clear or reasonable expectations. For example, most consumers would not know what to expect from an artificially intelligent robot.

Risk-utility assessment

To solve this issue, courts introduced a new tool: Risk-utility assessment. When products do not yet have reasonable consumer expectations, courts may determine their defectiveness based on the balance of utility versus the risk of the product. In other words, if a product poses the potential for harm out of balance with its benefits to the user, it may be defective. Likewise, if a product’s usefulness dwarfs its possible hazards, it is most likely not defective.

Courts now commonly use a blend of these two assessment tools when ruling on product liability cases.

Autonomous vehicles

Autonomous vehicles, being so new on the market, do not yet have widespread consumer expectations, and it is unlikely that they will develop these expectations anytime soon.

As the Journal of Law and Mobility posits, this could result in res ipsa loquitur. Res ipsa loquitur is a legal concept denoting that the very incidence of something necessitates negligence.

Consumers’ only current expectation of autonomous vehicles is that they not fail, so using the consumer expectation test would result in all accidents falling on the manufacturer’s negligence. It is yet unclear what a reasonable expectation of them is to be.

For the moment, some scholars suggest that using the risk-utility tool would be a more reasonable measure, but only time will tell how courts in Virginia and the US come to determine product liability claims for autonomous vehicles.