In the coming decades, advancing technology is likely to strain many tried-and-true legal concepts. The tort law cause of action for design defects is likely to be among the most impacted. This post will explore the current understanding of design defect claims, and highlight areas where autonomous vehicles and other highly complex technologies will likely lead to a rethinking of the doctrine.
As outlined in the Third Restatement of Torts, design defect claims can be brought against a manufacturer when “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design . . . and the omission of the alternative design renders the product not reasonably safe.” Essentially, plaintiffs who bring a design defect claim after being harmed by a product bear the burden of showing that the product was designed unreasonably for its intended use, and that an alternative design would have been safer for the user and reasonable for the manufacturer to adopt.
Traditionally, courts have adopted one of two tests to determine the reasonableness of a product design under these claims. Under the consumer expectations test, the key question is whether a product performed up to the level at which an ordinary consumer would expect. Because this test is based on the expectations of an ordinary consumer (one who is presumed to not have any special knowledge about the product), a claim can be successful without any expert testimony about the alleged design failure, as in McCabe v. American Honda Motor Corp.
Alternatively, many courts have adopted the risk-utility test for proving a design defect. The risk-utility test is more akin to cost-benefit balancing. The South Carolina Supreme Court in Branham v. Ford Motor Co. noted that the risk-utility test balances “numerous factors . . . including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger.” As this test requires testimony on cost of the current design and any proposed alternatives, it will require expert testimony and specialized knowledge, unlike the consumer expectations test.
Some have made the case that the consumer expectations test will be inadequate to address claims of design defect in complex technologies such as autonomous vehicles. After all, the argument goes, how could an ordinary consumer possibly have a realistic expectation of how an autonomous vehicle is supposed to perform in a given situation? Any given action by an AV is the result of a series of algorithms that is being constantly updated as the car gathers new information about the world around it. Should a consumer expect the AV to act just as a human would act? Should it be more cautious? Or perhaps even take actions that would seem overly risky for a human driver, because the AV system was certain of what every step in its maneuver would look like going in? How could a human passenger know? If courts are persuaded by these concerns, they will likely need to address them by adopting the more expert-reliant risk-utility test.
On the other hand, some scholars argue that the consumer expectations test is perfectly adequate to handle claims involving advanced technology such as AVs. In a recent article, NYU Law Professor Mark Geistfeld notes that consumers need not understand the intricacies of how a technology works in order to have “well-formed expectations of the product performance.” Under Geistfeld’s approach, a consumer either should have such a well-formed expectation or, in the case where they have yet to develop one, should be warned by the manufacturer or dealer in such a way as to make them aware of the risk they are taking on.
It remains to be seen how design defect claims will be forced to evolve as autonomous vehicles come on the scene. Like many areas of law though, this is a field that will be stressed, and potentially forced to evolve, by the advent of this revolutionary technology.