Auto claims & the increased interconnectivity of transportation
The question will likely come down to whether these crashes are the result of some form of driver negligence or if Tesla and others defectively designed their product(s).
Transportation and automobile negligence claims are some of the most common types of litigation seen by courts across the United States and these claims are now evolving. Typical transportation claims tend to focus on driver error – lack of focus, recklessness, inattention, etc.
However, more and more vehicles are now either operating autonomously to some degree (think large trucking companies) or have autopilot options (think personal use vehicles).
Despite this move towards computer monitored and operated vehicles, crashes still occur. In August 2021, the National Highway Traffic Safety Administration noted that it was aware of 11 accidents since 2018 involving Tesla’s Autopilot feature. Does that mean Tesla’s autopilot is/was defectively designed? Not necessarily. But it does mean we’re likely to see a continued rise in hybrid auto-products liability claims.
What Types of Claims Will Be Raised and Who Will be Liable?
In April 2020, Tesla was sued by the estate of Yoshihiro Umeda. Mr. Umeda was struck and killed near an expressway near Tokyo, Japan. His estate claimed that a Tesla Model X vehicle using Autopilot suddenly accelerated when the car in front of it switched lanes. The Tesla Model X crashed into multiple vehicles and people and fatally struck and killed Mr. Umeda. The lawsuit brought by his estate alleges strict products liability (design defect and failure to warn), negligence, wrongful death and loss consortium.
In Florida, the estate of Edgar Monserratt sued Tesla after Mr. Monserratt was killed in 2018. The estate alleges that a Tesla vehicle, operated by Barrett Riley (also deceased), lost control, struck multiple stationary objects, and burst into flames. They brought claims of negligence (removal of a speed governor device by Tesla and/or its employee), strict products liability (defective design, defective assembly), and failure to warn. Mr. Riley’s estate also brought a similar lawsuit alleging that the lithium-ion battery was improperly manufactured making it susceptible to bursting into flames (amongst other allegations).
These are not the only lawsuits pending, and other types of cases involving this type of technology will continue to arise. On the criminal side of the law, California prosecutors filed two counts of vehicular manslaughter in October 2021 against the driver of a Tesla on Autopilot who ran a red light and killed two people in 2019. The defendant appears to be the first person to be charged with a felony in the United States for a fatal crash involving a motorist who was using a partially automated driving system. What will his defense be? It’s likely he will argue that some defect with his Autopilot system caused this accident and that he is not liable for the accident. The question of whether it’s a good defense comes down to whether Tesla and others defectively designed their product(s) or if these crashes are the result of some form of driver negligence.
How Does a Company Defend Such Claims?
In the end, Tesla, and other companies like it should have strong legal arguments regarding their lack of legal liability for injuries. In New York, products liability law on design remains a “not reasonably safe” standard. Products that are dangerous to use in society are not foreclosed so long as they are “reasonably safe.” What that means will depend on the product, its ambit of use and misuse, the steps needed to be taken to make its use reasonably safe, the precise factual circumstances in the case and the interface of the plaintiff’s conduct. The first thing to look at is the use of the technology. The key terms here for companies defending these claims is “misuse” and “plaintiff’s conduct.” The first question a company should ask during its investigation into an accident where a product liability allegation is raised is: “Did a driver misuse the technology available to him or her?” If so, that will go a long way in defending these claims.
Driver inattention or negligence is one of the strongest ways for companies like Tesla to attack these allegations. For example, expert reports in the Riley case above opine that Mr. Riley was traveling in excess of 110 miles an hour at the time of the crash and that this fact resulted in his loss of control; which then led to multiple impacts with stationary objects; which resulted in the puncture of the ion battery’s protective casing. Tesla essentially argues that it was Mr. Riley’s actions, not the improper manufacture of an ion battery, that caused the vehicle to burst into flames.
However, the deactivation of the speed governor by a Tesla employee is still alleged to be a significant factor in causing the accident. In fact, a plaintiff’s expert opines that had the governor remained engaged and limited the vehicle’s speed to 85 mph, the car would have been able to make the turn where the accident occurred. Defending this allegation will likely require proof that either the Tesla employee acted of his own accord or that the option for removing the speed limit placed on the vehicle was known to the vehicle owners and they opted not to have the governor re-installed.
Tesla (and any other company facing a similar lawsuit) will also likely argue that they provide driver manuals, educational materials, and training on their vehicles’ operation prior to a customer taking ownership. Drivers who are distracted or believe an autopilot feature will handle everything will likely face strong pushback from automakers based on the SAE level of automation. Level Five is the top of the SAE International Engineering autonomy scale, but this level of automation does not exist in personal use vehicles or even large tractor-trailers.
Most personal use vehicles utilize a Level Two self-driving feature. While SAE level two driving allows the vehicle to take over most steering, acceleration and braking functions, the driver must remain fully attentive to the driving situation and be able to intervene at any moment. It is not driverless, fully autonomous driving. This argument will likely be one of the cruxes of any defense raised by motor vehicle companies when faced with such allegations.
Motor vehicle companies will also push back on these claims by arguing their products are not defectively designed. For example, in a New York jurisdiction, if a plaintiff were to allege that a company defectively designed its autopilot feature, the plaintiff must show (1) that the manufacturer marketed a product which was not reasonably safe in its design; (2) that it was feasible to design the product in a safer manner; and (3) that the defective design was a substantial factor in causing the plaintiffs injury.
Given that these autopilot features are not meant to be fully autonomous and that manufacturers clearly state such facts, plaintiffs will be hard-pressed to meet the burden noted above. It is also anticipated companies like Tesla will seek to show that their product’s utility outweighs its inherent danger by demonstrating through expert testimony that it was not feasible to design a safer, similarly effective and reasonably priced alternative product. If a defendant seeks to raise such an argument during dispositive motion practice, it must be sure to avoid leaving a gap in the requisite showing within the motion for summary judgment that a defendant’s design utility outweighed its risks, i.e., that it was reasonably safe and that it was not defective. Merely stating in an attorney’s affirmation that the product is knowingly dangerous and that warnings were not followed will be insufficient for granting summary judgment.
If a defendant properly raises the argument, it will place the burden on the plaintiff to come forward with competent proof. The plaintiff would then have to show that the product’s risks outweighed its utilitarian features and that the product, therefore, was not reasonably safe.
Ultimately, while we will certainly see more of these cases, defendant vehicle manufacturers have a host of defenses available to them to combat these allegations. Defendant vehicle manufacturers should document everything they do, confirm protocols are in place to inform and educate consumers and pay close attention to crash investigations where such allegations are raised. If such an allegation(s) were accepted at trial, the possibility for excessively large verdicts (especially given the notoriety of certain companies) is high. Adam Dolan is a partner at the litigation law firm of Gfeller Laurie LLP in New York City. He may be reached at: adolan@gllawgroup.com.
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