Garza: Look Ma, No Hands!

GARZA FINAL (DO NOT DELETE)
3/31/2012 11:36 AM
Look Ma, No Hands!: Wrinkles and

Wrecks in the Age of Autonomous
Vehicles
ANDREW P. GARZA*
ABSTRACT
In October 2010 Google unveiled that it had developed and

successfully road-tested the worlds first truly autonomous car; moreover,
that car had already logged over 140,000 autonomous miles. Media outlets
around the country were abuzz with the news. Some championed it as a
giant leap forward for safety, and others their worst nightmare realized.
In recent years automatic technologies have been increasingly
incorporated into motor vehicles, and estimates suggest that the Google car
could be available within the next eight years. While legal scholars once
wrote extensively about intelligent vehicle highway systems (IVHS) in
the 1990s, the IVHS concept has been all but abandoned. To date, legal
scholars have made no attempts to assess the potential liabilities that
would follow from autonomous vehicle implementation.
While manufacturers have been historically reluctant to incorporate
safety technologies because of liability concerns, they have ultimately
benefitted from implementation. Products liability law is capable of
handling the advent of autonomous vehicles just as it handled seat belts,
air bags, and cruise control. And, despite the catastrophization of critics,
increased manufacturer liability will not be a dire concern. Autonomous
vehicles will make driving safer, leading to a net decrease in manufacturer
liability and the cost of insurance and litigation. Additionally, because
modern consumers demand safety, economic pressures will necessitate
manufacturer adoption and enable loss spreading.
* Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Political Science,
University of Connecticut (2009). I would like to thank my family for all of their love and
support; my editors for their unending patience and positivity; and my Jennifer
Lynne, my wife.
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INTRODUCTION
fter a long day at work a man climbs into his van to start the drive
home; minutes later he falls asleep and is killed as he collides with
a tractor-trailer.1 A ninety-year-old woman on her way to the store
runs a red light and kills a seventeen-year-old high school student, causing
the community to weigh the elderlys need for independence with the
safety of their children.2 Another man has a stroke while driving, causing a
crash with a motorcycle and a truck on an expressway. 3 These three
accidents all have one thing in common: the crashes may have been
avoided had the occupants been driving a Google car.
While the idea of a self-driving car was no more a reality than the
protagonists work commute in the film adaptation of Isaac Asimovs I,
Robot,4 this all changed in October 2010.5 On its blog, Google unveiled that
it had created and successfully tested the worlds first truly autonomous
car:
Our automated cars, manned by trained operators, just drove
from our Mountain View campus to our Santa Monica office and
on to Hollywood Boulevard. Theyve driven down Lombard
Street, crossed the Golden Gate bridge, navigated the Pacific
Coast Highway, and even made it all the way around Lake
Tahoe. All in all, our self-driving cars have logged over 140,000
miles. We think this is a first in robotics research.6
Media outlets around the country carried the storysome championed it

as a giant leap forward for safety7 and others their worst nightmare
David Bauerlein, Driver Dies After Falling Asleep, Crashes, TIMES-UNION, Aug. 2, 2010, at
B3.
2
See Robert Davis & Anthony DeBarros, Stopping Older, Dangerous Drivers a Growing
Problem, USA TODAY, May 2, 2007, at A1.
3 Andrew Welsh-Huggins, Stroke, Car Crash Latest Obstacles for Watergates Magruder, USA
TODAY, July 31, 2007, http://www.usatoday.com/news/nation/2007-07-31-jeb-magruder_
N.htm.
4 See I, ROBOT (20th Century Fox 2004). In the year 2035 a techno-phobic cop investigates a
crime that may have been perpetrated by a robot, which leads to a larger threat to humanity.
I, Robot, INTERNET MOVIE DATABASE, http://www.imdb.com/title/tt0343818 (last visited Mar.
25, 2012).
5 Sebastian Thrun, What Were Driving At, OFFICIAL GOOGLE BLOG (Oct. 9, 2010, 12:00 PM),
http://googleblog.blogspot.com/2010/10/what-were-driving-at.html.
6
Id.
See John Markoff, Smarter than You Think: Google Cars Drive Themselves, in Traffic, N.Y.
TIMES, Oct. 10, 2010, at A1; Talk of the Nation: Google Asks, Why Should a Car Need a Driver?
(National Public Radio radio broadcast Oct. 11, 2010) [hereinafter Talk of the Nation], available at
www.npr.org/ templates/story/story.php?storyId=130492972.
7
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Wrinkles and Wrecks in the Age of Autonomous Vehicles
583
realized.8 Although automatic technologies are increasingly being

integrated into motor vehicles,9 conservative estimates suggest that the
Google car will likely not become a reality for at least another eight years. 10
And, while there are admittedly many obstacles in the way of full-scale
autonomous car implementation,11 they are not insurmountable.12
This Note examines and predicts how products liability law applies
where defects in autonomous vehicles result in accidents. 13 Despite
manufacturer concerns about increased liability, products liability law is
capable of handling autonomous vehicles in the same way that it handled
new safety technologies in the past.14 Because of the benefits that
autonomous vehicles will bring, increased manufacturer liability is not a
dire concern.15
Part I of this Note discusses the development of safety devices from
seat belts to advanced vehicle safety technologies. Additionally, Part I
discusses the development of autonomous vehicles, a timeline for
implementation, and the technology under the hood of Googles
autonomous car. Part II.A describes the law that autonomous vehicles will
encounter. Part II.B examines manufacturer concerns about the
implementation of seat belts, air bags, and cruise control and discusses
issues that have arisen with those devices. Part II.C focuses on how
products liability laws treatment of past safety devices may shed light on
the potential treatment of autonomous vehicles. Part III evaluates
manufacturer concerns about increased liability and discusses several
reasons why the increase is less concerning than anticipated.
See Chris Matyszczyk, Googles New Robot Car: Crazy Good or Crazy Crazy?, CNET (Oct. 10,
2010, 10:54 AM), http://news.cnet.com/8301-17852_3-20019139-71.html; Aaron Saenz, Googles
New Robot Car Raises Hopes, Reality Will Dash Them Soon, SINGULARITY HUB (Oct. 11, 2010),
http://singularityhub.com/2010/10/11/googles-new-robot-car-raises-hopes-reality-will-dashthem-soon.
9
See infra Part I.A.

Markoff, supra note 7.
11 See Saenz, supra note 8 (arguing that the robot car presents many social-legal
problems); Talk of the Nation, supra note 7 (discussing the cost of the cars Light Detection and
Ranging (LiDAR) unit as being prohibitively expensive).
10
12
13
14
15
See infra Part 0.

See infra Part II.C.
See infra Part III.
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Paving the Road

A. Seat Belts, Advanced Vehicle Safety Technologies, and the Road to
Full Automation
Autonomous vehicles are the next step in a line of safety devices

designed to protect human lives.16 However, the public and the automobile
industry have not always welcomed new safety technologies. 17 Despite
these attitudes, the data is clear: safety technologies save lives.18 The
National Highway Traffic Safety Administration (NHTSA) estimates that
between 1975 and 2005 seat belts saved over 211,000 lives, and air bags
saved almost 20,000.19
In addition to seat belts, automobile manufacturers have introduced
state-of-the-art safety devices called Advanced Vehicle Safety Technologies
(AVST).20 The most important of these systems are Adaptive Cruise
Control (ACC), Lane Departure Warning Systems (LDWS), and
Collision Mitigation Braking Systems (CMBS).21 ACC, like normal cruise
control, helps the driver maintain a preset vehicle speed. 22 ACC is different,
however, in that it reduces the risk of collision by maintaining a preset
distance using either a laser- or radar-based system.23 ACC has the
potential to benefit the disabled24 as well as everyday drivers, and it has
16
See Thrun, supra note 5.

See Robert Dan Spendlove, Casenotes and Comments, Speed Bumps on the Road to
Progress: How Product Liability Slows the Introduction of Beneficial TechnologyAn Airbag
Example, 13 GEO. MASON L. REV. 1143, 1145-46 (2006) (discussing the challenges air bags faced
in full-scale implementation).
17
18 See generally NATL HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS: 2005 DATA
(2005), available at http://www-nrd.nhtsa.dot.gov/Pubs/ 810621.pdf (discussing the number of
lives saved by seat belt use).
19 Id. at 5 tbl.4.
20 See NATL HIGHWAY TRAFFIC SAFETY ADMIN., HUMAN FACTORS FORUM ON ADVANCED
VEHICLE SAFETY TECHNOLOGIES: SUMMARY & PROCEEDINGS 1-2 (2008), available at
http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/2008/DOT
%20HS%20810%20918.pdf.
21 See Larry Carley, Active Safety Technology: Adaptive Cruise Control, Lane Departure Warning
& Collision Mitigation Braking, IMPORT CAR (June 16, 2009), http://www.import-car.com/
Article/58867/active_safety_technology_adaptive_cruise_control_lane_departure_warning__c
ollision_mitigation_braking.aspx.
22 Id.
23 Id. As the technology currently operates, if the vehicle loses communication with any of
the sensors necessary for ACC to functionlike the laser or radar range finder, speed sensor,
throttle position sensor, or throttle and brake control systemsACC becomes unavailable to
the driver until the problem is repaired. Id.
24 Robert Bennett, Adaptive Cruise Control Helps Drivers with Disabilities, DISABOOM,
http://www.disaboom.com/auto-enthusiast/adaptive-cruise-control-helps-drivers-with-
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been hailed [t]he most under-hyped, but most important, technology

since seat belts.25
In 1999, NHTSA found that 269,000 traffic accidents occurred as a
result of drifting into another lane while driving or intentionally
changing lanes into a space occupied by another vehicle.26 To combat
drifting, companies developed LDWS.27 LDWS use a camera mounted
near the rearview mirror and sophisticated software to determine the
vehicles orientation relative to the road and lane markers. 28 If the vehicle
begins drifting out of the lane, or the driver begins to change lanes without
signaling, the LDWS warns the driver both audibly and visually. 29 Some
vehicles, utilizing scientific research about the physical behavior of
fatigued drivers, supplement the LDWS with a system that will alert the
driver and recommend a break when fatigue-related symptoms are
recognized.30 The benefits of these systems cannot be overestimated given
that one-third of drivers admit to having fallen asleep at the wheel within
the previous thirty days.31
CMBS are also an important development in vehicle-safety
technologies.32 These systems use radar or cameras to detect objects in the
disabilities (last visited Mar. 25, 2012) (arguing that *d+rivers with slower reaction times, or
those with mobility challenges, will benefit from ACCs anticipatory capabilities).
25 Robert Scoble, The Most Under-Hyped, but Most Important, Technology Since Seat Belts,
SCOBLEIZER (Jan. 3, 2010), http://scobleizer.com/2010/01/03/the-most-under-hyped-but-mostimportant-technology-since-seat-belts.
26
NATL HIGHWAY TRAFFIC SAFETY ADMIN., ANALYSIS OF LANE CHANGE CRASHES at viii
(2003), available at http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20
Avoidance/2003/DOTHS809571.pdf.
27 See FED. MOTOR CARRIER SAFETY ADMIN., U.S. DEPT OF TRANSP., CONCEPT OF
OPERATIONS AND VOLUNTARY OPERATIONAL REQUIREMENTS FOR LANE DEPARTURE WARNING
SYSTEMS (LDWS) ON-BOARD COMMERCIAL MOTOR VEHICLES (July 2005), http://
www.fmcsa.dot.gov/facts-research/research-technology/report/lane-departure-warningsystems.htm (discussing LDWS manufactured by a variety of companies).
28
Carley, supra note 21.

Id.
30 See Jack Loftus, Mercedes Attention Assist Fights Drowsy Driving with Coffee Breaks, Alarms,
GIZMODO (Dec. 28, 2008, 3:00 PM), http://gizmodo.com/5119231/mercedes-attention-assistfights-drowsy-driving-with-coffee-breaks-alarms; Mercedes-Benz New E-Class Addresses Drowsy
Driving, MOLDOVA (June 23, 2009), http://auto.moldova.org/news/mercedesbenz-new-eclassaddresses-drowsy-driving-201812-eng.html.
31 Press Release, Natl Sleep Foundation, Almost All Say Drowsy Driving Is Unacceptable,
but a Third of Us Do It (Nov. 4, 2011), available at http://www.sleepfoundation.org/article/
press-release/national-sleep-foundation%E2%80%99s-drowsy-driving-preventionweek%C2%AE-provides-tips-prev.
32 See Crash Avoidance: New Technology Promises Safer Roads & Saved Lives, INFO. HANDLING
SERVICES (July 2003), http://global.ihs.com/news/auto/july03_2.html.
29
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road ahead.33 CMBS save lives because the majority of drivers do not fully
apply their brakes before a crash. 34 When an impending collision is
detected, the CMBS takes preventative measures. 35 Depending on the
sophistication of the equipped CMBS, three separate approaches may be
taken to prevent an accident. 36 In the most basic version, the CMBS alerts
the driver that he is approaching a vehicle from behind too quickly. 37 In a
more advanced version, the CMBS tightens the seat belts and preloads the
brakes to reduce the reaction time and stopping distance once the brakes
are applied.38 If the driver fails to react in time, it applies 40% of the full
braking power to reduce the severity of the collision.39 In the most
advanced version, the CMBS performs all of the functions described above,
and it will also stop the car automatically to avoid a collision when
traveling under ten miles-per-hour.40 Car companies are hesitant to push
the automatic braking threshold too far out of fear that fully automatic
braking systems will shift the responsibility of avoiding an accident from
the vehicles driver to the vehicles manufacturer.41
B. Super Cruise Control42
The World Health Organization estimates that over 1.2 million people
die each year in road traffic accidents.43 In the United States alone, over
180,000 people died in motor vehicle crashes between 2005 and 2010. 44
Google believes that its autonomous car can reduce traffic fatalities by as
33
See id.
See Scoble, supra note 25.
35 See id.
36 See Carley, supra note 21.
37 Id.
38 Id.; see also INS. INST. FOR HIGHWAY SAFETY, Q&A: CRASH AVOIDANCE TECHNOLOGY,
http://www.iihs.org/research/qanda/crash_avoidance.html (follow What kinds of crash
avoidance technologies are currently available for passenger vehicles? hyperlink) (last visited
Mar. 25, 2012).
34
39
Carley, supra note 21.

Id.
41 Id.
42 Brian Barrett, Test Driving Googles Driverless Car, GIZMODO (Oct. 12, 2010, 1:20 PM),
http://gizmodo.com/5662005/test-driving-googles-driverless-car.
43 Thrun, supra note 5.
44 NATL HIGHWAY TRAFFIC SAFETY ADMIN., FARS ENCYCLOPEDIA: FARS DATA TABLESSUMMARY, http://www-fars.nhtsa.dot.gov/Main/index.aspx (last visited Mar. 25, 2012).
NHTSA compiles and publishes fatal accident data annually in the Fatality Analysis
Reporting System (FARS). Fatality Analysis Reporting System (FARS), NHTSA,
http://www.nhtsa.gov/FARS (last visited Mar. 25, 2012).
40
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much as half.45
1.
Autonomous Vehicle Technology: Then and Now
Although car companies have been conducting autonomous vehicle

research and development for decades,46 there have been significant
advances in the last seven years due to the Defense Advanced Research
Projects Agencys (DARPA) Grand Challenges.47 The challenges involve
research teams funded by DARPA that build autonomous vehicles capable
of navigating an obstacle course.48 Although no team was able to
successfully complete the designated 142-mile desert route in 2004,49 the
2005 and 2007 challenges were won by Stanford and Carnegie Mellon,
respectively.50 Googles autonomous car was developed by members from
the winning teams of the 2005 and 2007 DARPA challenges. 51
The autonomous car has technology similar to AVST that are presently
commercially available; the difference is that it combines them all into one
package, creating a Super Cruise Control.52 To navigate, the autonomous
car uses the mapping data that Google has collected for its maps project53
via its manually driven camera cars. 54 A rotating Light Detection and
Ranging (LiDAR)55 unit, that scans a 360-degree field of view and maps
45
Thrun, supra note 5.

See Daniel Bartz, Autonomous Cars Will Make Us Safer, WIRED (Nov. 16, 2009, 8:00 AM),
http://www.wired.com/autopia/2009/11/autonomous-cars (discussing General Motorss
development of automated highway technology in the 1950s).
46
47
See Urban Challenge: Overview, DARPA, http://archive.darpa.mil/grandchallenge/
overview.asp (last visited Mar. 25, 2012). The purpose of DARPAs Grand Challenges is to
leverage American ingenuity to accelerate the development of autonomous vehicle
technologies . . . . Grand Challenge Overview, DARPA, http://archive.darpa.mil/grandchallenge
04/overview.htm (last visited Mar. 25, 2012).
48
See Urban Challenge: Overview, supra note 47.

Grand Challenge Overview, supra note 47.
50 Carnegie Mellon Robotized SUV Wins DARPA Urban Challenge, SCIENCEDAILY (Nov. 5,
2007), http://www.sciencedaily.com/releases/2007/11/071105230951.htm; Grand Challenge 05,
DARPA, http://archive.darpa.mil/grandchallenge05/overview.html (last updated Dec. 31,
2007).
49
51

See Barrett, supra note 42.
53 Googles maps project uses vehicles with cameras mounted on their roofs to collect 360degree views of locations all over the world. See generally Cars, Trikes & More, GOOGLE MAPS,
http://maps.google.com/intl/en_us/help/maps/streetview/behind-the-scenes.html (last visited
Mar. 25, 2012).
52
54

LiDAR uses light pulses to create a very precise, high-resolution image of the cars
surroundings. See KEIL SCHMID ET AL., NATL OCEANIC & ATMOSPHERIC ADMIN. (NOAA)
COASTAL SERVS. CTR., LIDAR 101: AN INTRODUCTION TO LIDAR TECHNOLOGY, DATA, AND
55
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the cars surroundings, is located on top of the vehicle.56 The left rear wheel
of the car contains a position estimator that measures the cars
movement and helps pinpoint its location on a map.57 A camera mounted
near the rear-view mirror, much like those used in LDWS, recognizes
traffic lights and helps the computer identify pedestrians and bicyclists. 58
Like vehicles equipped with CWS, there are radar sensors in the front and
rear bumpers that provide the car with information about its relative
distance from surrounding objects.59 Finally, a GPS receiver and an
inertial motion sensor help determine the location, speed, and movement
of the vehicle.60
2.
Overridable Autonomous Vehicle Implementation and

Transition
Engineers estimate that the autonomous car could be road-ready in

approximately eight years.61 Given that all vehicles currently on the road
are manual, and that for the foreseeable future autonomous vehicles will
need to function alongside fully manual cars, growth is likely to proceed in
two phases: (1) a transition from manual cars to overridable autonomous
vehicles (OAV); and (2) a shift to fully autonomous, nonoverridable
vehicles when the distribution of OAVs greatly outnumbers manual cars. 62
Market research on consumer attitudes about the desirability of fully
autonomous vehicles also suggests that consumers are not quite ready. 63
APPLICATIONS 1 (2008), available at http://www.csc.noaa.gov/digitalcoast/data/coastallidar/
pdf/What_is_Lidar.pdf. The cost of the LiDAR unit on the top of the Google car is estimated at
$75,000. See Travis Deyle, Velodyne HDL-64E Laser Rangefinder (LIDAR) Pseudo-Disassembled,
HIZOOK (Jan. 4, 2009), http://www.hizook.com/blog/2009/01/04/velodyne-hdl-64e-laserrangefinder-lidar-pseudo-disassembled.
56
Markoff, supra note 7, at A18 tbl.

Id.
58 See id.
59 See id.
60 See id.
61 Id.
62 Cf. NIDHI KALRA ET AL., RAND CORP., LIABILITY AND REGULATION OF AUTONOMOUS
VEHICLE TECHNOLOGIES 3-4 (2009) [hereinafter RAND REPORT], available at http://www.
path.berkeley.edu/PATH/Publications/PDF/PRR/2009/PRR-2009-28.pdf
(describing
the
anticipated evolutionary timeline for autonomous vehicle technologies). While the RAND
Report divides the growth into six stages, this Note assumes three phases will occur given
that AVST have been incorporated into vehicles since the report was written in 2009. See id.
63 See Talk of the Nation, supra note 7 (discussing an interview with a Ford engineer whose
consumer research found that a majority of people did not want to relinquish the type of
control necessary to drive an autonomous vehicle). Because of the enormous practical
obstacles in implementing a total transition to fully-autonomous vehicles, this Note will focus
on liability issues pertaining to the less-speculative OAVs. See infra Part 0.
57
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ANALYSIS
II. Assessing OAV Liability: Lessons from the Past
According to NHTSA, there are almost 16,000 car accidents each day in
the United States.64 Necessarily, the question arises: What happens when
OAVs are involved in accidents?65 As with many new technologies,
predictions are made, and there is often a desire to create a new legal
framework to address the particular advent. 66 Although this is tempting,
the current state of products liability law is equipped to handle the
implementation of OAVs just as it handled previous technologies. 67
Because [e]rror in legislation is common, and never more so than when
the technology is galloping forward, it is important to avoid attempts to
match an imperfect legal system to an evolving world that we understand
poorly.68
A. Autonomous Vehicles and the Legal Road Ahead
Products liability law ascribes liability to a manufacturer or seller of a
product that injures a person or property.69 The four principal products
liability claims are negligence, breach of warranty, strict products liability,
and misrepresentation.70
Today, strict liability is considered the dominant legal theory in
products liability litigation.71 Justice Robert Traynors concurrence in Escola
v. Coca Cola Bottling Co.72 enunciated the theory of strict liability in products
liability cases.73 In order for a plaintiff to recover on a claim for strict
products liability, they must prove two elements: (1) that the defendant
sold a defective product; and (2) that the defect proximately caused the
64
NATL HIGHWAY TRAFFIC SAFETY ADMIN., 2008 TRAFFIC SAFETY ANNUAL ASSESSMENT
HIGHLIGHTS 3 tbl.4 (2009), available at http://www-nrd.nhtsa.dot.gov/pubs/811172.pdf
(dividing the 2008 figure by 365).
65 See infra Part II.C.
66 Cf. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207,
207 (discussing the potential pitfalls in prescribing legal adaptations for cyberspace).
67
See infra Part II.B.

Easterbrook, supra note 66, at 215.
69 1 DAVID G. OWEN, M. STUART MADDEN & MARY J. DAVIS, MADDEN & OWEN ON
PRODUCTS LIABILITY 1:5, at 14-15 (3d ed. 2000) [hereinafter MADDEN & OWEN].
68
70
Id. at 15.
1 LOUIS R. FRUMER & MELVIN I. FRIEDMAN, PRODUCTS LIABILITY 8.01(1), at 8-6 (Cary
Stewart Sklaren ed., 2011).
72 150 P.2d 436, 440 (Cal. 1944) (Traynor, J., concurring).
73 TERRENCE F. KIELY & BRUCE L. OTTLEY, UNDERSTANDING PRODUCTS LIABILITY LAW 1.04,
at 15 (2006).
71
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plaintiffs harm.74
The theory of strict liability was also established in the Restatement
(Second) of Torts.75 Under the Restatement (Second) of Torts, a product can
be defective as a result of a manufacturing defect, a design defect, or a
warning defect.76 Manufacturing defects result from the improper
construction of a product that leads to malfunction, whereas design defects
allege that the design of an entire product line is unsafe. 77 Finally, where a
manufacturer insufficiently informs or fails to warn the users of its
product, and the product is more dangerous due to the insufficient
warning, a plaintiff may allege a warning defect. 78 Automobile products
liability cases are typically divided into two categories: (1) accidents
caused by automotive defects, and (2) aggravated injuries caused by a
vehicles failure to be sufficiently crashworthy to protect its occupants in
an accident.79
74 DAVID G. OWEN, PRODUCTS LIABILITY LAW 5.3, at 261 (2005). Although the Restatement
(Second) of Torts uses the language defective condition unreasonably dangerous, Owen
argues that most courts and commentators encapsulate this phrase with the use of the term
defective, which simply means that a product is more dangerous than it properly should
be. Id. at 262.
75
RESTATEMENT (SECOND) OF TORTS 402A (1965).

Special Liability of Seller of Product for Physical Harm to User or
Consumer
(1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate user or consumer, or to
his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale
of his product, and
(b) the user or consumer has not bought the product from or entered
into any contractual relation with the seller.
Id.
76 AMERICAN LAW OF PRODUCTS LIABILITY 17:3, at 11 (3d ed. 2010) [hereinafter AM. L.
PRODS. LIAB.].
77
78
79
Id.
Id.
OWEN, supra note 74, 17.1, at 1072-73 (footnote omitted).
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1.
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Defects Leading to Crashes
Defects that cause accidents are typically defects in manufacturing, but

they may also be design defects.80 For example, a car suffers from a design
defect when a malfunction in the steering wheel causes a crash. 81
Additionally, plaintiffs have alleged and prevailed on manufacturingdefect claims in cases where unintended, sudden and uncontrollable
acceleration causes an accident.82 In such cases, plaintiffs have been able to
recover under a malfunction theory.83 Under a malfunction theory,
plaintiffs use a res ipsa loquitur like inference to infer defectiveness in
strict liability where there was no independent proof of a defect in the
product.84
Plaintiffs have also prevailed where design defects cause injury. 85 For
example, there was a proliferation of litigation in the 1970s and 1980s as a
result of vehicles that were designed with a high center of gravity, which
increased their propensity to roll over.86 Additionally, many design-defect
cases arose in response to faulty transmissions that could inadvertently slip
into gear, causing crashes and occupants to be run over in some cases. 87
The two primary tests that courts use to assess the defectiveness of a
products design are the consumer-expectations test and the risk-utility
test.88
The consumer-expectations test focuses on whether the danger posed
by the design is greater than an ordinary consumer would expect when
using the product in an intended or reasonably foreseeable manner.89 The
more complex a product is, the more difficult it is to apply the consumerexpectations test.90 Because consumers must have sufficient knowledge or
familiarity with the design of the product to have reasonable expectations
about its safety or performance, the test is often difficult to apply with
80
Id. at 1074.
See, e.g., Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 75 (N.J. 1960).
82 See, e.g., Consalo v. Gen. Motors Corp., 609 A.2d 75, 76 (N.J. Super. Ct. App. Div. 1992).
83 See 1 MADDEN & OWEN, supra note 69, 7:12, at 431.
84 Id. The malfunction theory has been adopted by the Restatement (Third) of Products
Liability. RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. 3 (1998).
81
85
See generally AM. L. PRODS. LIAB., supra note 76, 97:26, at 42 (2008 & Supp. 2010).
See generally id. (discussing the many makes and models of vehicles with a roll-over
propensity that have lead to many products liability cases).
86
87
See generally id. 97:200 (surveying the verdicts and settlements of inadvertent
transmission slippage cases in many states).
88 See 1 MADDEN & OWEN, supra note 69, 5:5, at 293-94.
89 KIELY & OTTLEY, supra note 73, at 135; see Bruce v. Martin-Marietta Corp., 544 F.2d 442,
447 (10th Cir. 1976).
90
See KIELY & OTTLEY, supra note 73, at 138-39.
592
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complex products like automobiles.91 Thus, while an ordinary consumer

can have expectations that a car will not explode at a stoplight or catch fire
in a two-mile-per-hour collision, they may not be able to have expectations
about how a truck should handle after striking a five- or six-inch rock at
thirty-five miles-per-hour.92 Perhaps because the consumer-expectations
test is difficult to apply to complex products, and we live in a world where
technological growth increases complexity, the risk-utility test has become
the dominant test in design-defect cases.93
In Barker v. Lull Engineering Co., the Supreme Court of California
developed an alternative test that permitted the plaintiff to use either a
consumer-expectation theory or a risk-utility theory.94 In Barker, the
plaintiff was seriously injured by a piece of lumber that fell from a loader. 95
The plaintiff was operating the loader on a sharp grade and, as he lifted the
lumber higher, the loader began to tip.96 The plaintiff dove from the truck
but was unable to avoid injury.97 The plaintiff contended that the loader
was defectively designed because it was not equipped with outriggers
(mechanical arms that extend out from the sides and provide balance),
which would have greatly improved the loaders stability.98 The court held
that, in addition to the consumer-expectations test, a product may be
defective in design if the plaintiff demonstrates that the products design
proximately caused his injury and the defendant fails to establish, in light
of the relevant factors, that, on balance, the benefits of the challenged
design outweigh the risk of danger inherent in such design.99 The purpose
of the risk-utility test is to determine the extent to which an injury could
91
Id.
See id. at 139; compare Soule v. Gen. Motors Corp., 882 P.2d 298, 308 n.3 (Cal. 1994)
(*O+rdinary consumers . . . may and do expect that . . . vehicles will be designed so as not to
explode while idling at stoplights, experience sudden steering or brake failure as they leave
the dealership, or roll over and catch fire in two-mile-per-hour collisions.), with Heaton v.
Ford Motor Co., 435 P.2d 806, 809 (Or. 1967) (High-speed collisions with large rocks are not
so common, however, that the average person would know from personal experience what to
expect under the circumstances.).
92
93
See AM. L. PRODS. LIAB., supra note 76, 17:32, at 76-77.

573 P.2d 443, 446 (Cal. 1978). The risk-utility test is also known as the cost-benefit or
risk-benefit test. See 1 MADDEN & OWEN, supra note 69, 8:4, at 124-25.
95 Barker, 573 P.2d at 447.
96 Id.
97 Id.
98 Id. at 447-48.
99 Id. at 456. When conducting a risk-utility analysis, courts should consider the overall
safety, desirability, and utility of the product; whether similar, but safer, alternatives exist;
and the avoidability of danger if a consumer exercises due care or is adequately informed or
warned. See John W. Wade, On the Nature of Strict Tort Liability for Products, 44 MISS. L.J. 825,
837-38 (1973).
94
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have been less severe, or avoided entirely, had the manufacturer used a
feasible alternative design.100
Plaintiffs have also claimed that defects in warnings have resulted in
injury.101 The plaintiff in Greiner v. Volkswagenwerk Aktiengeselleschaft
alleged a defect in warning where the Volkswagen Beetle she was driving
rolled over due to her aggressive steering. 102 The plaintiff contended that
Volkswagen was liable for failing to warn of the vehicles possible
dangerous propensity to rollover, and the court permitted the issue to go
to the jury.103
2.
Defects That Enhance Injury: The Concept of

Crashworthiness
Litigation can also arise where a plaintiff alleges that a vehicle is not
sufficiently crashworthy.104 Crashworthiness claims are a type of designdefect claim.105 As a result, courts use both the consumer-expectations test
and the risk-utility test when assessing a vehicles crashworthiness.106 The
choice of test depends on state law, however, and cases may be governed
by either or both of the tests.107 Although the consumer-expectations test is
the governing law in almost half of the United States, 108 the modern trend
is to use the risk-utility test in crashworthiness determinations.109
Crashworthiness is defined by Congress as the protection a
passenger motor vehicle gives its passengers against personal injury or
100 1 MADDEN & OWEN, supra note 69, 8:5, at 463 (quoting McCarthy v. Olin Corp., 119
F.3d 148, 155 (2d Cir. 1997). Not all jurisdictions require proof of a reasonable alternative
designin fact, scholars have argued that requiring such proof undermines the policies
underlying strict liability because it creates a pseudo-negligence standard. See, e.g., Patrick
Lavelle, Comment, Crashing into Proof of a Reasonable Alternative Design: The Fallacy of the
Restatement (Third) of Torts: Products Liability, 38 DUQ. L. REV. 1059, 1100 (2000). This is also
known as the reasonable alternative design test, and is incorporated into the Products
Liability Restatement: A product . . . is defective in design when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor . . . and the omission of the alternative
design renders the product not reasonably safe. RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB.
2(b) (1998).
101
102
103
104
105
106
107
108
109
See Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85, 90 (3d Cir. 1976).
Id. at 92.
Id. at 90, 97.
See generally Larsen v. Gen. Motors Corp., 391 F.2d 495, 502-05 (8th Cir. 1968).
1 MADDEN & OWEN, supra note 69, 8:1, at 438.
OWEN, supra note 74, at 1088.
See 1 MADDEN & OWEN, supra note 69, 8:3, at 445-46, 449.
Id. at 449.
OWEN, supra note 74, at 1089.
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death from a motor vehicle accident.110 Crashworthiness refers to a

vehicles capability to withstand the physical stresses of a collision and to
minimize additional or enhanced injuries the passengers may sustain as a
result of the second collision between the occupants and the interior of the
vehicle.111 The 1968 case of Larsen v. General Motors Corp.112 is the landmark
case for the crashworthiness doctrine.113
In Larsen, the plaintiff was driving a 1963 Chevrolet Corvair that was
involved in a head-on collision.114 As a result of the collision, the steering
mechanism was thrust backward into the drivers head, killing him.115 The
estate argued that because of the vehicles design the decedent received
injuries that he would not have otherwise and, alternatively, that but for
the vehicle design the injuries would have been less severe. 116 The Larsen
court wrote that [w]hile automobiles are not made for the purpose of
colliding with each other, a frequent and inevitable contingency of normal
automobile use will result in collisions and injury-producing impacts.117
Thus, Larsen recognized that a manufacturer should be liable for injury or
damage that results over and above what would have occurred if the
design had not been defective. 118
Crashworthiness is particularly important in an automotive context
because safety devices like seat belts and air bags are implemented to
improve occupant safety, thus making vehicles more crashworthy.119
Although the net result is often safer vehicles, occupants are sometimes
subjected to unexpected and unreasonable risk[s] of harm when safety
devices fail.120 These failures subject manufacturers to increased liability
110
49 U.S.C. 32301(1) (2006).

DAVID G. OWEN, JOHN E. MONTGOMERY & MARY J. DAVIS, PRODUCTS LIABILITY AND
SAFETY 835 (6th ed. 2010) [hereinafter PRODUCTS LIABILITY AND SAFETY].
111
112
391 F.2d 495 (8th Cir. 1968).

1 RICHARD M. GOODMAN, CTR. FOR AUTO SAFETY, AUTOMOBILE DESIGN LIABILITY 1:4,
at 12 (3d ed. 1991).
113
114
391 F.2d at 496-97.

Id.
116 Id. at 497.
117 Id. at 502.
118 Id. at 503.
119 See OWEN, supra note 74, at 1093.
120 See Leichtamer v. Am. Motors Corp., 424 N.E.2d 568, 580 (Ohio 1981) (discussing
liability for roll bar collapse in a Jeep); OWEN, supra note 74, at 1093; see, e.g., Silvestri v. Gen.
Motors Corp., 210 F.3d 240, 241-42 (4th Cir. 2000) (discussing serious injuries that occurred
when the air bag failed to deploy in a twenty-four mile-per-hour collision); Nelson v. Ford
Motor Co., 761 N.E.2d 1099, 1102-03 (Ohio Ct. App. 2001) (discussing seat belt comfort
feature that resulted in the plaintiffs permanent spinal cord injuries).
115
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595
and have led to trepidation in the incorporation of novel safety devices. 121
B. Safety-Device Development, Manufacturer Attitudes, and Products
Liability Treatment
Automobile manufacturers have been concerned about incorporating
safety devices for decadeshistorically, such concerns have centered
around the anticipated shift in liability from drivers to manufacturers.122
Not surprisingly, this trepidation is heightened in response to autonomous
vehicles.123 Despite manufacturer concerns, the anticipated shift in liability
that will accompany the adoption of autonomous vehicles will not be
overly problematic.124 Products liability law is capable of handling the
new technology just as it handled the incorporation of seat belts, air bags,
and cruise control.125 By looking at the development of these technologies
and the way that they have been treated under products liability law, it
becomes apparent that autonomous vehicles will be handled in much the
same way.126
1.
Seat Belt Struggles
The first seat belt was installed in a motor vehicle in 1955.127 Ford
Motor Company spearheaded the safety efforts by installing lap belts, and
state legislatures began mandating installation shortly thereafter. 128 Despite
Fords efforts, other manufacturers were hesitant. 129 General Motors
consistently contested the value of belts, tried to minimize their
importance for the industry and attempted to discourage their
adoption.130
121
See infra Part II.B.

See Robert Kneuper & Bruce Yandle, Auto Insurers and the Airbag, 61 J. RISK & INS. 107,
107 n.1 (1994).
122
123 See KENT D. SYVERUD, UNIV. OF MICH., SMART CAR AND SMART HIGHWAY LIABILITY:
LESSONS FROM EXPERIENCE WITH AIRBAGS, ANTILOCK BRAKES, CRUISE CONTROL, AND CELLULAR
TELEPHONES 2 (1992).
124 But see RAND REPORT, supra note 62, at 45 (arguing that the increase in manufacturer
liability is expected to be problematic).
125
See infra Part II.B.1-3.

127 OWEN, supra note 74, at 1111 n.68.
128 M. David Shapiro, Casenote, Insurance Co. of North America v. Pasakarnis, 451 So. 2d
447 (Fla. 1984), 12 FLA. ST. U. L. REV. 669, 670 (1984).
129 See Edward M. Swartz et al., Seat-Belt Injury Litigation: Defective Restraint Systems Can
Result in Serious Injury, TRIAL, Nov. 1988, at 47, 47-48.
126
130
Id.
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In 1958, the National Safety Council, the American Medical

Association, and the U.S. Health Service developed Operation Seat Belt
to increase public education about the enormous safety benefits of seat
belts.131 American automakers standardized the addition of lap belts in
both front and rear seats of new cars by 1966. 132 In an effort to encourage
automobile safety, Congress created NHTSA in its passage of the National
Traffic and Motor Vehicle Safety Act of 1966.133 While most cars were
equipped with seat belts as late as the mid-1980s, usage rates were as low
as 13% among Americans.134 In response to the low usage, NHTSA issued a
rule requiring all new cars be equipped with automatic seatbelts or
airbags by 1990, unless by 1989 states comprising two-thirds of the nations
population enacted qualifying mandatory seatbelt use laws.135
Since their advent and incorporation, seat belts have resulted in
litigationmuch of which has involved crashworthiness claims. 136 In
Jackson v. General Motors Corp., for example, the plaintiff alleged that as a
result of a defectively designed seat belt, his injuries were enhanced. 137 The
defendant manufacturer argued that the complexity of seat belts foreclosed
any consumer expectation,138 but the Tennessee Supreme Court noted that
seat belts are familiar products for which consumers expectations of
safety have had an opportunity to develop, and permitted the plaintiff to
recover under the consumer-expectations test.139 Although manufacturers
have been sued where seat belts render a car insufficiently crashworthy
131 Cheryl Lynn Daniels, Note, The Seat Belt Defense and North Carolina's New Mandatory
Usage Law, 64 N.C. L. REV. 1127, 1131 (1986).
132
Id.
Peter Scaff, Comment, The Final Piece of the Seat Belt Evidence Puzzle, 36 HOUS. L. REV.
1371, 1377 (1999); see National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89563, 80 Stat. 718, 727, repealed by Pub. L. 103-272, 108 Stat. 1385 (1994).
133
134 See Daniels, supra note 131, at 1132; Scaff, supra note 133, at 1377 & n.33 (discussing the
evolution of mandatory seat-belt-usage laws in the 1980s and the adoption of Standard 208).
135 OWEN, supra note 74, at 1111; see also Federal Motor Vehicle Safety Standard; Occupant
Crash Protection, 49 Fed. Reg. 28,962, 28,963 (July 17, 1984) (codified at 49 C.F.R. 571.208
(2010)).
136
See, e.g., Johnson v. Gen. Motors Corp., 438 S.E.2d 28, 31 (W. Va. 1993) (alleging that a
seat belt design was not sufficiently crashworthy where it lacked both a lap- and shoulderrestraint system); see generally Harold A. Sakayan et al., More than a Case About a Car: An
Analysis of Garrett v. Ford Motor Company, TRIAL, Feb. 1989, at 34, 34 (discussing seat belt
injury claims and the public-benefit role that plaintiffs lawyers can play by bringing suits);
Swartz et al., supra note 129, at 47-49 (discussing seat belt design defects, manufacturer
resistance to incorporation, and special seat belt litigation issues).
137
60 S.W.3d 800, 802 (Tenn. 2001).
138
Id. at 804.
139
Id. at 806 (quoting Cunningham v. Mitsubishi Motors Corp., No. C-3-88-582, 1993 WL
1367436, at *3 (S.D. Ohio June 16, 1993)).
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597
as in cases where they fail to perform as intended or enhance injurythe

incorporation of seat belts has reduced liability as well.140 This reduction
comes in the form of the seat belt defense.141
The seat belt defense allows a defendant to present evidence about
an occupants nonuse of a seat belt to mitigate damages or to defend
against an enhanced-injury claim.142 Because seat belts are capable of
reducing the number of lives lost and the overall severity of injuries
sustained in crashes, it is argued that nonuse should protect a
manufacturer from some claims.143 Although the majority rule is to prevent
the admission of such evidence in enhanced-injury litigation, there is a
growing trend toward admission.144
2.
Air Bag Angst
John W. Hetrick was issued a patent for the air bag in 1953 by the U.S.
Patent and Trademark Office.145 Hetrick conceived the idea after the
torpedo he was repairing unexpectedly released a burst of air and inflated
its canvas covering.146 The air bag did not become feasible until 1966 when
the U.S. Army developed a triggering mechanism capable of deploying
it.147 The air bag was first offered commercially in 1970.148 But, car
manufacturers were hesitant to adopt the air bag then because of both
technological uncertainties and the threat of product liability.149 In
1976, however, NHTSA promulgated Federal Motor Vehicle Safety
Standard 208, which required manufacturers to install their choice of either
lap and shoulder belts, air bags, or both. 150 By the late 1980s and early
1990s, most manufacturers began to install air bags. 151
Litigation involving air bags has typically focused on three areas: (1)
failure of a manufacturer to install an air bag when it was technologically
140
See 3 FRUMER & FRIEDMAN, supra note 71, 21.06, at 21-107.

Id. 21.06[1], at 21-107 to 21-108.
142 Id.
143 See id. at 21-105 to 21-106.
144 See id. 21.06[3], at 21-116.
145 Spendlove, supra note 17, at 1144.
146 See id. at 1144-45.
147 See id.
148 Murray Mackay, Liability, Safety, and Innovation in the Automotive Industry, in THE
LIABILITY MAZE: THE IMPACT OF LIABILITY LAW ON SAFETY AND INNOVATION 191, 214 (Peter W.
Huber & Robert E. Litan eds., 1991).
141
149
150
151
Id. at 214-15.
OWEN, supra note 74, at 1093; see also 49 C.F.R. 571.208, S4.2.2 (2007).
See OWEN, supra note 74, at 1093.
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and economically feasible;152 (2) air bag malfunction or failure to fire;153

and (3) air bags that enhance occupant injuries. 154 Where a technology is
novel, as will be the case with OAVs, courts favor a risk-utility test until
consumers become more familiar with a product.155
In Bresnahan v. Chrysler Corp., the plaintiffs elbow was fractured by an
air bag after she rear-ended another car, and she brought suit alleging that
the design was unreasonably dangerous.156 The court allowed her to
proceed under the consumer-expectations test because air bags had become
highly publicized, commonplace, and consumers had become capable
of forming expectations about how the product works. 157 On the other
hand, some courts have not permitted the use of the consumerexpectations test in air bag products liability cases. 158 Unlike the Bresnahan
court, these courts found that [t]he deployment of an air bag is, quite
fortunately, not part of the everyday experience of the consuming public,
and favored a risk-utility test instead.159 Thus, while courts apply different
tests when assessing liability for new technologies, the existing doctrine is
flexible enough to accommodate these developments. 160
3.
Cruise Control Conflicts
Car manufacturers were developing cruise control systems as early as

1954161 when they were beginning to install seat belts.162 The Speed-o152 Mackay, supra note 148, at 215. These are the air bag preemption cases that were
brought frequently during the phase-in period. See OWEN, supra note 74, at 1093. These cases
will not be discussed here but have been discussed in-depth by several scholars. See generally
Susan Raeker-Jordan, The Pre-Emption Presumption that Never Was: Pre-Emption Doctrine
Swallows the Rule, 40 ARIZ. L. REV. 1379, 1380-81 (1998); Patrick J. Norton, Note, What Happens
When Air Bags Kill: Automobile Manufacturers Liability for Injuries Caused by Air Bags, 48 CASE
W. RES. L. REV. 659, 659-61 (1998).
153 See, e.g., Silvestri v. Gen. Motors Corp., 210 F.3d 240, 242 (4th Cir. 2000); Cansler v.
Mills, 765 N.E.2d 698, 701 (Ind. Ct. App. 2002).
154
See Norton, supra note 152, at 659-61.

See Pruitt v. Gen. Motors Corp., 86 Cal. Rptr. 2d 4, 6 (Cal. Ct. App. 1999); see also
Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 77 & n.12 (1st Cir. 2002); Wheeler v.
Chrysler Corp., No. 98 C 3875, 2000 WL 263887, at *3-4 (N.D. Ill. Mar. 1, 2000) (In contrast to
cases presenting simple products wherein the consumer can hold reasonable expectations of
safety, complex and technical products are not amenable to the consumer-contemplation
test.).
156 38 Cal. Rptr. 2d 446, 448 (Cal. Ct. App. 1995).
157 Id. at 451.
158 E.g., Pruitt, 86 Cal. Rptr. 2d at 6-7.
159 Id. at 6.
160 Compare id. (applying the risk-utility test), with Bresnahan, 38 Cal. Rptr. 2d at 451
(applying the consumer-expectations test).
155
161
See Frank Rowsome Jr., Educated Gas Pedal Keeps the Cops Away, POPULAR SCI., Jan. 1954,
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599
Stat, as it was called then, was invented by a blind automobile engineer

named Ralph Teetor.163 Cruise control was designed both to help the driver
maintain a set speed without accelerator input, thereby reducing fatigue on
longer drives and to help drivers avoid tickets by limiting their speed.164
Inventors also considered creating a locking system so that parents of
teenage drivers who hav[e] a taste for speed could limit the maximum
speed.165 The Chrysler Corporation was the first company to offer cruise
control to consumers in its 1958 Imperial.166 But, even then, safety experts
were concerned that a driver with literally nothing to do except steer and
ruminate167 would be more likely to drop off for 40 fatal winks.168
Additionally, manufacturers were concerned that the technology had the
potential to keep the throttle open.169 Despite these concerns,
manufacturers incorporated the technology.170
Since their incorporation, consumers have sued manufacturers for
defective cruise control systems that lead to injury. 171 Because of the
complexity of cruise control technology, courts may not allow a plaintiff to
use the consumer-expectations test.172 Despite the complexity of the
at 166, 166 [hereinafter Rowsome I].
162 OWEN, supra note 74, at 1111 n.68.
163 Rowsome I, supra note 161, at 168.
164 Id. at 168-69.
165 Id. at 264.
166 See Frank Rowsome Jr., What Its Like to Drive an Auto-Pilot Car, POPULAR SCI., Apr. 1958,
at 105, 105 [hereinafter Rowsome II].
167
Id. at 106.
Rowsome I, supra note 161, at 169.
169 Rowsome II, supra note 166, at 250.
170 See id.
171 See generally AM. L. PRODS. LIAB., supra note 76, 97:107 (listing litigation based on
cruise control failure in a variety of states); see, e.g., Jarvis v. Ford Motor Co., 283 F.3d 33, 38-39
(2d Cir. 2002); Jurls v. Ford Motor Co., 752 So. 2d 260, 262 (La. Ct. App. 2000).
172 See Scott Dayton, Seventh Circuit: Even Plaintiffs Relying on the Consumer Expectations
Test Must Present Expert Testimony, PRODUCT LIABILITY MONITOR (Sept. 23, 2011),
http://product-liability.weil.com/expert-issues/seventh-circuit-even-plaintiffs-relying-on-theconsumer-expectations-test-must-present-expert-testimony/#axzz1lqmoVjiy. Discussing the
Seventh Circuits decision in Show v. Ford Motor Co., 659 F.3d 584, 588 (7th Cir. 2011), Dayton
writes:
168
[W]here a products design or operation are outside the scope of lay

knowledge, even a plaintiff attempting to satisfy the consumerexpectation test must provide the jury with expert guidance.
Functionally, this appears to suggest that the consumer-expectations test
is of significantly reduced value to plaintiffs in complex products-liability
cases, effectively relegated to one of the considerations under the riskutility approach.
600
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technology, other courts allow plaintiffs to establish a defect using either

the risk-utility test or the consumer-expectations test.173
C. Applying Strict Products Liability to OAVs
Despite manufacturer concerns about the incorporation of autonomous
technologies, historically products liability law has been capable of
handling such advents.174 Undoubtedly, despite the benefits and safety of
autonomous technologies, there will be situations where OAV defects
cause and enhance injuries.175 However, given that manufacturing defects
have declined in recent years as fabrication processes improve,
autonomous vehicles are not expected to present unique problems in this
area.176 Where products are improperly machined, assembled, or utilize
faulty components, manufacturers will be liable for their malfunction.177
As a fall-back position, where a plaintiff has no other way of showing
what the defect was, they may rely on the malfunction theory. 178 Like the
unintended acceleration in Consalo,179 even in the absence of independent
proof of a product defect, plaintiffs may be entitled to a res ipsa loquituresque inference of defectiveness to aid their recovery. 180 However, plaintiffs
will primarily sue manufacturers for design defects and will rely on the
consumer-expectations test and the risk-utility test.181
1.
Consumer Expectations Applied
Under the consumer-expectations test, manufacturers will likely

argueas they historically havethat OAV technology is too complicated
for the average consumer to have appropriate expectations about its
capabilities.182 Commentators have stated that consumers may have
unrealistic expectations about the capabilities of these technologies . . . .
Technologies that are engineered to assist the driver may be overly relied
Id.
173 See Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 336 (Ill. 2008); Calles v. ScriptoTokai Corp., 864 N.E.2d 249, 257 (Ill. 2007); Santosa v. Chrysler Corp., No. 48823-6-I, 2002 WL
31045305, at *9 (Wash. Ct. App. Sept. 9, 2002).
174 See supra Part II.B.2.
175 See OWEN, supra note 74, at 1072-73.
176 See RAND REPORT, supra note 62, at 28.
177 See AM. L. PRODS. LIAB., supra note 76, 17:3, at 12.
178 See 1 MADDEN & OWEN, supra note 69, 7:12, at 112-13.
179 Consalo v. Gen. Motors Corp., 609 A.2d 75, 76 (N.J. Super. Ct. App. Div. 1992).
180 See RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. 3 (1998); 1 MADDEN & OWEN, supra
note 69, 7:12 at 112-13.
181
182
See supra note 88 and accompanying text.

See Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 806 (Tenn. 2001).
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601
on to replace the need for independent vigilance on the part of the vehicle
operator.183
Plaintiffs will argue that, while the workings of the technology are
concededly complex, the overall concept of autonomous driving is not.184
Like the car exploding at a stoplight or the car that catches fire in a twomile-per-hour collision, the average consumer would expect autonomous
vehicles to drive themselves without incident.185 This means that
components that are meant to keep the car within a lane will do just that,
and others will stop the vehicle at traffic lights. 186 Where incidents occur,
OAVs will not have performed as the average consumer would expect.187
While many courts have found that consumers are sufficiently familiar
with seat belts, there is uncertainty about whether air bags and cruise
control are commonplace.188 The farther removed from the everyday, the
less likely courts are to permit proof of defect under the consumerexpectations test.189 Plaintiffs would be well advised to emphasize the allencompassing role that OAV technology plays in their lives. 190 While
interactions with air bags are admittedly not part of the everyday
experience of the consuming public, surely commuting to work and
running errands are.191 Such consistent, engrossing interactions with OAVs
will lead to increased consumer familiarity and will more closely align
consumer expectations with reality.192
As was seen with seat belts, air bags, and cruise control, courts are
hesitant to allow plaintiffs to proceed under the consumer-expectation test
183
184
RAND REPORT, supra note 62, at 29.

See Jackson, 60 S.W.3d at 806.
185
See KIELY & OTTLEY, supra note 73, at 138.

See Soule v. Gen. Motors Corp., 882 P.2d 298, 308 n.3 (Cal. 1994).
187 See KIELY & OTTLEY, supra note 73, at 135; see also Matthew Michaels Moore & Beverly
Lu, Autonomous Vehicles for Personal Transport: A Technology Assessment 5 (June 2, 2011)
(unpublished article California Institute of Technology), available at http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=1865047 (discussing consumers higher expectations for
autonomous vehicles).
186
188
See Pruitt v. Gen. Motors Corp., 86 Cal. Rptr. 2d 4, 5-7 (Cal. Ct. App. 1999) (finding air
bags too complex for the consumer-expectations test); cf. Watson v. Ford Motor Co., 699 S.E.2d
169, 177 & n.4 (S.C. 2010) (requiring proof of defect under the risk-utility test because the
vehicles cruise control system was too complex for the consumer-expectations test).
189
See Pruitt, 86 Cal. Rptr. 2d at 5-7.

Cf. id. at 6-7 (holding that air bag deployment does not play an all-encompassing role in
consumers lives, precluding the use of the consumer-expectations test).
190
191
See id. at 6.
See Bresnahan v. Chrysler Corp., 38 Cal. Rptr. 2d 446, 451 (Cal. Ct. App. 1995)
(discussing the role that consumer awareness plays in the propriety of the consumerexpectations test).
192
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where the technology itself is novel.193 Thus, plaintiffs who purchase OAVs
at the cusp of availability, and attempt to prove defect under the consumerexpectations test, are likely to face an up-hill battle.194 But the unavailability
of the consumer-expectations test will not be a significant detriment as
plaintiffs can fall back on the risk-utility test.195 And as OAVs are
increasingly incorporated, and users become more familiar with their
capabilities, the consumer-expectations test will become more accessible to
plaintiffs.196 Given the modern trend, plaintiffs are likely to face the riskutility test.197
Manufacturers have been hesitant to incorporate automatic braking
technologies because they would shift liability for accidents almost
exclusively to the manufacturer.198 This concern will likely carry over to
OAVs as they represent an even greater shift in responsibility for
accidents.199 Where a driver relies on the cars ability to stop itself, and that
ability malfunctions, manufacturers will be liable for resulting injuries.200 In
such cases, a consumers expectations about the cars capabilities will lead
to liability under a design-defect theory.201 Difficulties arise, however,
where proof is required under a risk-utility theory.202
2.
Risk-Utility Applied
Although scholars have argued that using a risk-utility approach is

akin to replacing products liability with a negligence standard, it is likely
to play an important role in OAV cases. 203 Allegations similar to those in
Barkerthat OAVs are defective because they lack components that would
make them saferwill present interesting problems.204 Because OAVs are
193
See James A. Henderson, Jr., Echoes of Enterprise Liability in Product Design and Marketing
Litigation, 87 CORNELL L. REV. 958, 985 (2002) (*A+irbags involve new technology about
which consumers are unable to form expectations of safety.); cf. Bresnahan, 38 Cal. Rptr. 2d at
451 (permitting the application of the consumer-expectations test where the public develops a
sufficient familiarity with novel technology).
194
See Bresnahan, 38 Cal. Rptr. 2d at 451.

See infra Part II.C.2.
196 See Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 806 (Tenn. 2001).
197 See supra note 109 and accompanying text.
198 Carley, supra note 21 (noting manufacturer hesitance to enable vehicles to fully stop
themselves for fear of the resulting liability shift).
199 Cf. id.
200 See Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 336 (Ill. 2008).
201 See Bruce v. Martin-Marietta Corp., 544 F.2d 442, 447 (10th Cir. 1976).
202 See Norton, supra note 152, at 676-78 (arguing that the risk-utility test is difficult for
plaintiffs).
195
203
204
See id. at 676.

See Barker v. Lull Engg Co., 573 P.2d 443, 448 (Cal. 1978).
2012
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603
on the cutting edge of technology, it will be difficult to prove that the

incorporation of an alternative device or technology would have made
them safer.205 Given that manually driven cars are more predictableand
for obvious reasons, would not crash from a failure in automatic braking
technologyit is possible that suits alleging that OAVs are defective
because they permit too much autonomy might crop up.206 At the other end
of the spectrum, plaintiffs might argue that manufacturing OAVs that are
partially autonomous but not fully autonomousthus eliminating the
possibility of human errorare a safer design.207 Of course, at least while
there is still a choice between manual cars and OAVs, allegations by those
who purchase OAVs and then allege that their manual counterpart is safer,
will be scrutinized by courts.208 In assessing the benefits of OAVs, courts
should look at the overall utility and safety of OAVs; the gravity of
potential injuries; the availability of a similar, but safer product; and the
avoidability of danger when the product is properly used.209
Courts will encounter problems when looking at how OAV benefits
outweigh their risks when accidents occur.210 These arguments will
primarily concern the number and appropriateness of the factors to be
included in the cost-benefit weighing.211 In the past, automobile
manufacturers have provided statistics to support the life-saving functions
that safety features provide to consumers. 212 While analogizing vehicle
restraint and air bag statistics to OAVs is admittedly an apples-to-oranges
affair, these statistics may be indicative of how the benefits of autonomous
vehicle technologies are likely to be perceived. 213
NHTSA estimates that in 2008 child restraints, air bags, and seat belts
saved over 16,000 lives.214 Additionally, had occupant use of seat belts been
at 100%, an additional 4152 lives would have been spared.215 If one takes
Google at its wordthat traffic fatalities may be cut by as much as half
with the implementation of autonomous vehiclesthe scale seems to clang
205
See 1 MADDEN & OWEN, supra note 69, 5:7, at 307-08.

See RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. 2 (1998).
207 See id. 2(b).
208 See id. cmt. a.
209 See Wade, supra note 99, at 837.
210 See Norton, supra note 152, at 676-78 (noting that one court recognized the formulation
of the correct test for design defect cases [as+ a formidable task).
206
211
See RAND REPORT, supra note 62, at 30.

See Norton, supra note 152, at 687.
213 See id. at 685.
214 NATL HIGHWAY TRAFFIC SAFETY ADMIN., LIVES SAVED IN 2008 BY RESTRAINT USE AND
MINIMUM DRINKING AGE LAWS 1-2 (2010), available at http://www-nrd.nhtsa.dot.gov/
Pubs/811153.pdf.
212
215
Id.
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heavily onto the benefit side of the equation. 216 Thus, where a jury heavily
weighs the benefits of autonomous vehicles against the risks they create,
manufacturers will benefit.217
Some commentators argue, however, that the incorporation of these
statistics is misleading and presents juries with a false choice.218 They argue
that the appropriate comparison is not how much safer autonomous cars
are than nonautonomous cars but, rather, how safe they are relative to
alternative, autonomous vehicles.219 From the common-sense notion that
the potential for safer alternatives is only likely to increase with advances
in technology, analyses that exclude the incorporation of safety statistics
are likely to benefit plaintiffs.220 But, while such a tilt may increase
manufacturer liability, this increase will be offset by the benefits that
autonomous technologies bring.221
3.
Crashworthiness Applied
The potential for OAV crashworthiness claims will require careful

consideration by manufacturers.222 With the incorporation of OAVsand
the pursuit of greater fuel economymanufacturers see the potential to
start making cars lighter because of the decreased risk of collisions. 223 The
desire for lighter, more fuel-efficient cars conflicts with the requirement
that cars be sufficiently crashworthy.224 Absent significant advances in
materials science that do not trade off weight for safety, if manufacturers
make cars lighter, then plaintiffs will prevail in situations where the trade-
216
See Thrun, supra note 5. However, this assessment may neglect the emotional
component of jury trials. See Norton, supra note 152, at 684. Juries may disregard
considerations of speculative nonparties who reap benefits from safety technologies, in favor
of ascertainable and sympathetic injured plaintiffs. See id.
217 See Norton, supra note 152, at 676.
218 See id.
219 See id. at 688.
220 See id. at 687-88 (arguing that the use of statistics may unfairly inflate the benefits of a
product).
221
See infra Part III.

See Susana Polo, Google Tests Cars That Drive Themselves: Not Content to Just Give
Directions Any More, GEEKOSYSTEM (Oct. 10, 2010), http://www.geekosystem.com/google-carsdrive-themselves (discussing the potential for lighter cars because they will get in fewer
accidents).
222
223
See id.
See Howard M. Bunch, The Small Car May Be Dangerous to Your Health! The Consequences
of Downsizing, in GOVERNMENT, TECHNOLOGY, AND THE FUTURE OF THE AUTOMOBILE 171, 17177 (Douglas H. Ginsburg & William J. Abernathy eds., 1980) (arguing that the downsizing of
cars negatively impacts occupant safety).
224
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605
offs result in enhanced injury.225 This will especially be a concern because

OAVs will operate alongside manually driven cars for the foreseeable
future.226 When autonomous vehicles are totally implemented, the benefit
of such a reduction has the potential to outweigh the risk of enhanced
injury and preclude plaintiff recovery.227
Additionally, the extent to which injuries are enhanced by OAVs will
be debated.228 Because the majority of drivers fail to fully apply their brakes
prior to a collision,229 where an OAV only partially applies brakes, or fails
to apply brakes at all, manufacturers and plaintiffs will disagree about the
extent of enhancement.230 Manufacturers will argue that, absent the OAV,
the result would have been the same or worsethus, the extent to which
the injuries of the plaintiff are enhanced is minimal.231 Plaintiffs will
argue that, just like the presentation of crash statistics in a risk-utility
analysis, this is a false choice.232 Like no-fire air bag claims, plaintiffs will
contend that but for the malfunction of the OAV, their injuries would have
been greatly reduced or nonexistent. 233 As a result, any injuries sustained
above that threshold should serve as a basis for recovery. 234
In the end, while not all lawsuits will be clear or simpleas they
seldom areexisting products liability laws are sufficiently flexible to
accommodate OAV implementation.235
III. Increased Manufacturer Liability: Much Ado About Nothing
From seat belts to air bags to cruise control, manufacturers have been
historically resistant to the incorporation of new technologies.236 This
225
See PRODUCTS LIABILITY AND SAFETY, supra note 111, at 835-36.

Cf. RAND REPORT, supra note 62, at 4 fig.2.1.
227 See Barker v. Lull Engg Co., 573 P.2d 443, 446 (Cal. 1978).
228 See infra notes 231-232 and accompanying text.
229 See Carley, supra note 21 (discussing the common failures of drivers to fully apply
brakes).
226
230
See Larsen v. Gen. Motors Corp., 391 F.2d 495, 503 (8th Cir. 1968).
231
See id. (*M+anufacturer*s+ should be liable for that portion of the damage or injury
caused by the defective design over and above the damage or injury that probably would
have occurred as a result of the impact or collision absent the defective design.).
232
See Norton, supra note 152, at 687-88.

See Silvestri v. Gen. Motors Corp., 210 F.3d 240, 242 (4th Cir. 2000) (discussing the
plaintiffs experts conclusion that the injuries would not have occurred if the airbag had
functioned properly).
233
234
See Larsen, 391 F.2d at 503.

See Silvestri, 210 F.3d at 244 (finding sufficient proof of causation in an airbag
malfunction case where the plaintiff proved malfunction generally, despite a failure to offer
extensive or intricate testimony on the exact inner-workings and mechanisms of the airbag).
235
236
See supra Part II.B.
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resistance centered on the anticipated increase in liability, which would

make incorporation unfeasible.237 Despite initial claims about the
impracticability of incorporating these technologies, manufacturers have
benefitted in the long run.238 This pattern will prove true with autonomous
cars as well.239
While the manufacture and implementation of OAVs will increase
liability when accidents occur, this increase is not a dire concern for
manufacturers for several reasons: (1) OAV implementation, and the safety
it will bring, will lead to a net decrease in manufacturer liability and the
cost of insurance; (2) OAVs and modern technology will drastically reduce
litigation costs; and (3) modern consumers demand safety. 240
A. Increased Safety, OAVs, and the Commensurate Reduction in
Manufacturer Liability
1.
Reducing Compensatory Damage Awards and the Cost of

Insurance with OAVs
When defendant-manufacturers lose products liability suits, they may

pay compensatory and punitive damages to injured plaintiffs.241 For the
injured plaintiff, a major element of loss will be expenses for medical care,
including medical rehabilitation.242 And, the medical and rehabilitative
costs of injured plaintiffs are considered compensatory damages. 243 Because
the benefits of autonomous vehicles are vast, even a small decline in the
number of crashes could save many lives and billions of dollars.244 Where
damage awards are dependent on the extent of a plaintiffs injuries,
manufacturers benefit by the incorporation of safety technologies that
reduce injury.245 Despite their historic reluctance to incorporate safety
devices, manufacturers will ultimately benefit by the accompanying
reduction in injuries and fatalities.246
Take seat belts as an example. Seat belts have been shown to reduce the
risk of fatality in a collision by 45% in cars and 60% in light trucks. 247
237
238
239
240
241
242
243
244
245
246
247
See supra Part II.B.

See infra notes 254-255 and accompanying text.
See infra Part III.A-C.
2 MADDEN & OWEN, supra note 69, 17:5, at 174.
See id. 17:1, at 158, 160.
RAND REPORT, supra note 62, at 30.
See id.
See id. at ix.
NATL HIGHWAY TRAFFIC SAFETY ADMIN., FATALITY REDUCTION BY SAFETY BELTS FOR
2012
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607
NHTSA research on the impact of primary seat belt laws (laws requiring
belt use) found that increased seat belt use leads to a corresponding
decrease in the medical expenses shouldered by state and federal
governments.248 The increase in usage rates of seat belts generates
significant savings not only for state Medicaid budgets but for insurance
companies as well.249 For example, NHTSA estimated that the increased
seat belt use accompanying a primary belt law would save Massachusetts
insurance companies $55.8 million, the Federal Government $3.9 million,
and Massachusetts $5.7 million from crash-related injuries in the first year
alone.250
As the use of safety devices incorporated by manufacturers increases,
injuries and medical costs decrease.251 Decreased medical costs lead to a
corresponding decrease in compensatory damage amountsthus,
defendants in products liability suits ultimately pay less. 252 A reduction in
medical costs will also follow from OAV implementation. 253 Should
Googles estimates for safety increases prove true (a reduction in crashes
by as much as half), car manufacturers stand to reap enormous benefits. 254
If OAVs cut the number of motor-vehicle fatalities in half, although
manufacturers will be burdened by the possibility of increased liability,
they will ultimately pay less for actual liabilities because fatalities are fewer
and injuries are less severe. 255
Manufacturers obtain products liability insurance to help protect
against the cost of adverse judgments when consumers are accidentally
FRONT-SEAT OCCUPANTS OF CARS AND LIGHT TRUCKS 70 (2000) [hereinafter FATALITY

REDUCTION], available at http://www.nhtsa.gov/cars/rules/regrev/evaluate/pdf/809199. pdf.
248 See NATL HIGHWAY TRAFFIC SAFETY ADMIN., ESTIMATED MEDICAL COST SAVINGS IN
MASSACHUSETTS BY IMPLEMENTING A PRIMARY SEAT BELT LAW, at i (2008) [hereinafter
ESTIMATED MEDICAL SAVINGS], available at http://www.nhtsa.gov/DOT/NHTSA/Traffic%20
Injury%20Control/Articles/Associated%20Files/811067.pdf.
249 Id.
250 Id. For estimated savings in Arkansas, Colorado, Florida, Missouri, Nevada, New
Hampshire, Rhode Island, Utah, and Vermont, see Occupant Protection, NHTSA.GOV,
http://www.nhtsa.gov/Driving+Safety/Occupant+Protection (click the Medical Cost Savings
in States with Primary Seat Belt Laws drop-down box under the Studies & Reports tab)
(last visited Mar. 25, 2012).
251
See ESTIMATED MEDICAL SAVINGS, supra note 248, at i.

253 Cf. ESTIMATED MEDICAL SAVINGS, supra note 248, at i (exemplifying one way in which
safety technology implementation, in the form of seat belts, can reduce insurance costs as well
as state and federal spending).
254 Cf. FATALITY REDUCTION, supra note 247, at 70 (explaining how safety-belt technology
has been shown to cut fatalities by up to half in cars and up to 60% in light trucks).
252
255
608
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v. 46 | 581
injured while using defective products.256 As the number of products

liability claims increase, the cost of insurance does as well.257 One of the
biggest issues with OAVs, and products liability in general, is that when
courts view manufacturers as large economic institutions able to spread
their risks by buying insurance and by passing on costs through higher
prices to consumers, insurance is not always available. The viability of
insurance is based on the predictability of risk, without which it becomes
extremely difficult to underwrite risks.258 Even products that are typically
very safe and rarely cause injuries to consumers can lead to hesitation by
insurance companies because of the potential for enormous damage
awards when injuries do occur.259 And, increased premiums for
manufacturers can make it difficult for them to stay in business. 260
While manufacturer and insurer concerns about OAV implementation
are expected, OAVs will ultimately reduce the cost of insurance for both
consumers and manufacturers.261 Past incorporation of safety devices have
led to an overall reduction in the risk and injury to consumers and the
overall cost of accidents.262 OAV implementation will decrease the
incidence of crashes and the severity of the crashes that do occur. 263 As a
result, both manufacturers and consumers will pay reduced insurance
256
See 6 FRUMER & FRIEDMAN, supra note 71, 58.01[1].

See Michael D. Stovsky, Comment, Product Liability Barriers to the Commercialization of
Biotechnology: Improving the Competitiveness of the U.S. Biotechnology Industry, 6 HIGH TECH. L.J.
363, 373-74 (1991).
257
258 See Drucilla K. Barker, An Empirical Analysis of the Effects of Product Liability Laws on
Underwriting Risk, 58 J. RISK & INS. 63, 77 (1991); Robert G. Berger, The Impact of Tort Law
Development on Insurance: The Availability/Affordability Crisis and Its Potential Solutions, 37 AM.
U. L. REV. 285, 300 (1988); Evan L. Rosenfeld, Article, The Strict Products Liability Crisis and
Beyond: Is There Hope for an AIDS Vaccine?, 31 JURIMETRICS J. 187, 195-96 (1991) (citation
omitted).
259 See Rosenfeld, supra note 258, at 195-96.
260 Stovsky, supra note 257, at 373-74. However, heightened manufacturer liability can be
beneficial. See Mark Geistfeld, The Political Economy of Neocontractual Proposals for Products
Liability Reform, 72 TEX. L. REV. 803, 821 (1994) (arguing that full manufacturer liability for
product-caused losses will lead to optimal manufacturer investments in product safety). As
the cost of liability is incorporated into the price of the product, the necessity of keeping prices
low will lead to increased investments in product safety. Id. at 821-22.
261
See RAND REPORT, supra note 62, at 19 & n.16.

See Spendlove, supra note 17, at 1151-52 (Empirical evidence shows that airbags are
effective at reducing the risk of driving by lowering the cost of accidents that occur.).
263 Cf. Lingyun Xiao & Feng Gao, A Comprehensive Review of the Development of Adaptive
Cruise Control Systems, 48 VEHICLE SYS. DYNAMICS 1167, 1180 (2010) (citation omitted)
([Ninety percent] of traffic accidents occur due to human error . . . ; ACC systems are
implemented . . . to reduce human error, and thus the number and severity of traffic
accidents.).
262
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609
costs.264
2.
Lessons from AVST Implementation Abroad and the

Reigning in of Punitive Damages
Although U.S. automobile manufacturers have been historically

inundated with products liability suits,265 there has been a gradual shift
toward decreased consumer protection.266 Success with the implementation
of AVST in other countries may have predictive value for U.S.
manufacturers and insurers trying to assess OAV liability. 267
ACC has been on Japanese markets since 1995 and on European
markets since 1998.268 Despite the implementation of AVST, European
courts have not been burdened with a great number of claims.269 Although
the legal framework in the United States shares many similarities with the
European Directive, the differences typically result from implementation.270
U.S. courts award compensation for pain and suffering in much greater
amounts; allow punitive damages; utilize technical and scientific experts to
a greater extent; and allow juries, instead of judges, to make decisions.271
The approach by insurers differs as well. Automobile insurers in Europe
view the safety benefits of AVST and thus OAVs, as tangible.272 Although
AVST require the driver to relinquish some controlwhich would seem
concerninginsurers have responded positively.273 Some insurers have
begun to offer a 20% discount to policyholders who purchase cars with a
lane-keeping function and ACC.274 Because OAVs combine lane-keeping
functions and ACC, insurers may ultimately offer discounts to
264

Cf. Claire Andre & Manuel Velasquez, Who Should Pay? The Products Liability Debate,
ISSUES IN ETHICS (Spring 1991), http://www.scu.edu/ethics/publications/iie/v4n1/pay.html
(*T+he so-called explosion in product liability suits, crippling American business, is a
myth.).
266 See Rob van der Heijden & Kiliaan van Wees, Introducing Advanced Driver Assistance
Systems: Some Legal Issues, 3 EUR. J. TRANSP. & INFRASTRUCTURE RES. 309, 320 (2001), available at
http://www.ejtir.tudelft.nl/issues/2001_03/pdf/2001_03_06.pdf.
265
267
Cf. SYVERUD, supra note 123, at 3 (arguing that much of the concern about legal liability
is overstated or uninformed because, although new technologies have been employed in the
past, they have been successfully managed or minimized by the defendants).
268
269
270
271
272
273
274
Xiao & Gao, supra note 263, at 1168.

See van der Heijden & van Wees, supra note 266, at 320.
Id.
Id. at 320-21.
See RAND REPORT, supra note 62, at 19-20.
See id.
Id. at 20.
610
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policyholders that drive OAVs as well.275

The advent of punitive damage awards in products liability cases has
compounded the problem of uncertainty posed for manufacturers and
their insurers by unpredictability in compensatory awards.276 The
randomness and uncertainty of punitive damages makes it virtually
impossible for insurers and manufacturers to calculate their exposure.277
Although notorious278 in the past, the Supreme Court has slowly reigned
in punitive damage awards over the last fifteen years. 279
In its 1996 decision in BMW v. Gore, the Supreme Court struck down a
punitive damage award because it was grossly excessive in violation of the
Due Process Clause of the Fourteenth Amendment. 280 Subsequently, in
State Farm v. Campbell in 2003, the Court held that an award of $145 million
in punitive damages was neither reasonable nor proportionate to the
wrong committed, and it was an irrational and arbitrary deprivation of the
property of the defendant in violation of the Due Process Clause. 281 Thus,
while punitive damages for manufacturers of OAVs were a salient
consideration in the pastpossibly having led to manufacturer and insurer
resistancerecent decisions have reduced the role that punitive damages
will play in future products liability litigation.282
B. Modern Technology and Litigation Cost Reduction
Scholars have argued that U.S. products liability lawspecifically the
potential for high damage awards, the use of expert testimony, and civil
jurieswill severely restrict the deployment of AVST and, by extension,
275
Cf. id.
Berger, supra note 258, at 314.
277 See Louis B. Potter, Are Punitive Damages Getting Out of Control?: Eliminate Them in Tort
Actions, A.B.A. J., Dec. 1984, at 16, 21.
278 Lewis N. Klar, The Impact of U.S. Tort Law in Canada, 38 PEPP. L. REV. 359, 368 (2011)
(highlighting punitive damages as a key difference between the American and Canadian tort
systems).
276
279 See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003); BMW of
N. Am., Inc. v. Gore, 517 U.S. 559, 585-86 (1996).
280 Neil B. Stekloff, Note, Raising Five Eyebrows: Substantive Due Process Review of Punitive
Damages Awards After BMW v. Gore, 29 CONN. L. REV. 1797, 1797 (1997); see BMW, 517 U.S. at
596-97 (Breyer, J., concurring).
281
See Campbell, 538 U.S. at 429.

See Philip Morris USA v. Williams, 549 U.S. 346, 352 (2007); Robert F. Carangelo &
Alison S. Aaronson, Supreme Court Issues Marching Orders for Punitive Damages Awards, FED.
LAW., June 2003, at 40, 44 (asserting that Campbell established limits and offers concrete
guidance for punitive damage award determinations); Laura Clark Fey et al., The Supreme
Court Raised Its Voice: Are the Lower Courts Getting the Message? Punitive Damages Trends After
State Farm v. Campbell, 56 BAYLOR L. REV. 807, 857 (2004).
282
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611
OAVs.283 Although this may have been the case in the past, modern
technology will decrease reliance on expert testimony in OAV product
liability cases and reduce the number of cases that go to trial.284
Electronic Data Recorders (EDR) and LDWS cameras will play a
large role in these reductions. 285 EDRs, like black boxes in airplanes, record
crash information.286 Although EDRs are not relatively well known, they
are already being used in accident reconstruction and to corroborate the
cases of savvy attorneys.287 EDR technology has progressed over time, and
the modern, sophisticated models can capture driver inputs (like braking
and steering) and the status of vehicle safety systems. 288 When a crash
occurs, the EDR records the data in its long-term memory.289 To date, EDRs
have been installed in most light motor vehicles, especially those with air
bags, but the sophistication of the recorders varies. 290
In 2006, NHTSA passed an Event Data Recorder Rule, 291 which
standardized the data to be collected by EDRs. 292 Currently, sophisticated
EDRs are capable of determining engine RPMs, occupant size and location,
air bag deployment statistics, vehicle roll angle, and anti-lock brake
activity.293 The rule required total manufacturer compliance by September
1, 2011.294 It is foreseeable that OAVs will also be equipped with EDRs
because most light cars today are equipped with EDRs, and OAVs will be
developed in a period of increasing manufacturer compliance with EDR
regulations.295
283

See infra Part III.B.1-2.
285 See infra Part III.B.1-2.
286 NATL HIGHWAY TRAFFIC SAFETY ADMIN., EVENT DATA RECORDERS 24, 28 (2006)
(codified at 49 C.F.R. pt. 563) [hereinafter EVENT DATA RECORDERS], available at
http://www.nhtsa.gov/DOT/NHTSA/Rulemaking/Rules/Associated%20Files/EDRFinalRule_A
ug2006.pdf.
287 See Edward M. Ricci, Successfully Litigating Black Box Issues and Other ATLA Exchange
Resources, in 1 ATLA ANNUAL CONVENTION REFERENCE MATERIALS (Association of Trial
Lawyers of America ed., 2005) (discussing the incorporation of black boxes into motor
vehicles).
288 EVENT DATA RECORDERS, supra note 286, at 24.
289 Id.
290 See id. at 25.
291 49 C.F.R. pt. 563 (2009).
292 EVENT DATA RECORDERS, supra note 286, at 7.
293 See id. at 198-200.
294 Id. at 50.
295 Cf. supra notes 293-294 and accompanying text (noting the promulgation of EDR
regulations and the trend toward mandatory incorporation in newly manufactured vehicles).
284
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As discussed above, the Google car has a camera mounted near the
rear-view mirror much like those used by LDWS.296 While the camera is
currently used to recognize traffic lights and aid the computer in
identifying pedestrians and bicyclists, it could easily be modified to record
data.297 The combination of recording an accident as it occurs and the
multitude of EDR data will aid causation determinations.298 Although
privacy issues are a foreseeable obstacle to this solution,299 the benefits to
plaintiffs and defendantsin the form of reduced expenditures on expert
testimony for causation determinationswill be enormous.300
1.
EDRs Will Decrease Reliance on Expert Testimony.
In products liability cases the use of expert witnesses has grown in

both importance and expense.301 Because of the extraordinary cost of
experts in products liability litigation, many plaintiffs are turned away
because, even if they were to recover, the prospective award would not
cover the expense of litigating the claim. 302 Expert testimony is used more
extensively in products liability litigation because of the complexity of the
technologies involved.303 While some causation issues are simple, the
mechanisms of most product failures are more complex.304 In products
liability suits the admission of expert testimony to prove causation is an
integral step.305 The absence of causation is fatal to a plaintiffs claim.306
EDRs will play a crucial role in products liability causation
determinations involving OAVs. 307 The EDR, as an electronic witness,
296
See Markoff, supra note 7, at A18 tbl.

See id. Although the high cost of data storage in the past may have made recording
unfeasible, the cost of electronic storage today is minimal. See Electronic Storage Best Practices,
FULCRUM INQUIRY (Oct. 2007), http://www.fulcrum.com/Reducing_Discovery_Costs.htm.
297
298
See infra Part III.B.2.

See Patrick R. Mueller, Every Time You Brake, Every Turn You MakeIll Be Watching You:
Protecting Driver Privacy in Event Data Recorder Information, 2006 WIS. L. REV. 135, 190-91
(discussing current, nonconsensual data collection, consumer unawareness of data collection,
and the need for regulation).
299
300 See Michelle Morgan Ketchum, Comment, Experts: Witnesses for the Persecution?
Establishing an Expert Witnesss Bias Through the Discovery and Admission of Financial Records, 63
UMKC L. REV. 133, 157 (1994) (discussing the cost of expert testimony).
301 Id.
302 Joseph Sanders, Adversarial Legalism and Civil Litigation: Prospects for Change, 28 L. & SOC.
INQUIRY 719, 723 (2003).
303
304
305
306
307
See David G. Owen, A Decade of Daubert, 80 DENV. U. L. REV. 345, 346 (2002).
Id.
Id. at 349.
See id.
See Ricci, supra note 287.
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613
will provide objective data for courts and juries to consider, thereby
reducing the need for expert testimony about the cause of the accident. 308
As a result of decreased reliance on expert testimony, the cost of litigating
products liability claims will decrease.309 Additionally, EDRs and crash
recordings will foster settlements in OAV products liability cases. 310
2.
EDRs and LDWS Will Aid Causation Determinations and

Foster Settlements.
Every theory of pretrial bargaining assumes that a negotiated

settlement is determined, at least in part, by the parties predictions of the
outcome of the case if it did go to trial.311 Thus, where an outcome is
perceived to be clearly adverse to one party, they are more inclined to
settle.312 The unknown future capabilities for determining accident or
injury causation creates uncertainty for automobile companies that try to
predict the liability associated with the introduction of a product into the
market.313
Coupling EDRs with OAV cameras with recording capabilities will
provide courts and juries with objective information that will make
causation determinations more clear-cut.314 This objective information will
enable parties in products liability actions to more accurately assess the
potential outcome of their lawsuits, and it will help manufacturers to
ascertain with greater certainty the risks that OAVs will present.315
Additionally, because trial outcomes will become more predictable,
settlements will increase.316
308
See id. Although some analysis of the EDR data will be necessarypotentially requiring
expertsthe objective nature of the data will enable courts and juries to more effectively
dispense of theories of causation that are inconsistent with the data. Cf. id.
309 Cf. Ketchum, supra note 300, at 157 (discussing the increased expense of expert
witnesses over time).
310 See infra Part III.B.2.
311 Samuel R. Gross & Kent D. Syverud, Dont Try: Civil Jury Verdicts in a System Geared to
Settlement, 44 UCLA L. REV. 1, 51 (1996).
312
See id.
Steven Garber & John Adams, Product and Stock Market Responses to Automotive Product
Liability Verdicts, 1998 BROOKINGS PAPERS ON ECONOMIC ACTIVITY: MICROECONOMICS 1, 4
(1998), available at http://www.jstor.org/stable/2534799.
314 See EVENT DATA RECORDERS, supra note 286, at 198-200 (discussing the types of data that
EDRs collect).
313
315
See id.
See Gross & Syverud, supra note 311, at 51. This has the potential to greatly benefit
manufacturers because many preposterous cases are settled because it is too risky to put
the injured plaintiff before a jury. See John D. Graham, Product Liability and Motor Vehicle
Safety, in THE LIABILITY MAZE: THE IMPACT OF LIABILITY LAW ON SAFETY AND INNOVATION,
316
614
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C. The Modern Consumer: Manufacturer Adoption Accommodates

Demands for Safety
Seat belts were initially offered to car buyers as an optional feature at
extra cost.317 Manufacturers claimed that the public had little interest in
safety technologies, but when Ford began to advertise seat belts in 1956,
the publics demand outpaced the companys ability to provide them.318
While most cars were equipped with seat belts as late as the mid-1980s,
usage rates were as low as 13% among Americans. 319 Today, it is estimated
that 83% of Americans use seat belts. 320
Consumer demands for safety influence manufacturer decision making
about the implementation of safety technologies. 321 Because modern
consumers are more sensitive about safety, manufacturers compete for a
pro-safety reputation.322 The idea that safety does not sell is no longer a
reality: [S]afety is increasingly perceived as a positive marketing feature,
an added-value item to the product, and hence an area in which research
and development leading to innovation can be a positive benefit to a
corporation.323 Increased consumer awareness about product safety
enhanced by the publication of crash-test results and studies by NHTSA
provides market-based incentives to automobile companies.324
Studies show that consumers are more likely to purchase vehicles that
score highly on government crash tests and that contain safety devices.325 A
NHTSA study found that subjects who tested ACC were very attracted to
this mode of driving and found it greatly appealing.326 The study
supra note 148, at 120, 126. While there is still the risk that parties will refuse settlements for
noneconomic reasons, like a desire to have their day in court, the desire for vindication has
rarely been a reason that a case proceeds to trial. Gross & Syverud, supra note 311, at 57.
317 RALPH NADER, UNSAFE AT ANY SPEED: THE DESIGNED-IN DANGERS OF THE AMERICAN
AUTOMOBILE 113 (1965).
318
Id. at 114-16.
See Daniels, supra note 131, at 1132; Scaff, supra note 133, at 1377 & n.33.
320 NATL HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS : SEAT BELT USE IN
2008DEMOGRAPHIC RESULTS 2 tbl.1 (2009), available at http://www-nrd.nhtsa.dot.gov/Pubs/
811183.PDF.
321 See Graham, supra note 316, at 122 & fig.4-1.
322 See id. at 184.
323 Mackay, supra note 148, at 208.
324 Steven Garber, Product Liability, Punitive Damages, Business Decisions and Economic
Outcomes, 1998 WIS. L. REV. 237, 271.
319
325 Patrick S. McCarthy, Consumer Demand For Vehicle Safety: An Empirical Study, 28 ECON.
INQUIRY 530, 541 (1990).
326
NATL HIGHWAY TRAFFIC SAFETY ADMIN., INTELLIGENT CRUISE CONTROL FIELD

OPERATIONAL TEST 13, 15 (1998), available at www.nhtsa.gov/DOT/NHTSA/NRD/
Multimedia/PDFs/Crash%20Avoidance/1998/icc1998.pdf.
2012
3/31/2012 11:36 AM
615
concluded that ACC will become a highly successful automotive product,

if attractively marketed.327 Studies on CWS and LDWS have found there is
great potential for increased safety. 328 One study found that CWS could
prevent up to 17.8% of all car accidents with personal injuries, and LDWS
could increase safety by 7.3%.329 A car equipped with both technologies
could avoid up to 25.1% of all car accidents. 330 Thus, since OAVs
incorporate ACC, CMBS, and LDWS, the market potential for OAVs will be
promising as well if consumers are made aware of the safety benefits. 331
As a result of modern consumer demands for safety, the increased
liability that OAVs will bring should not concern manufacturers.332
Ultimately, consumers shoulder the burden of products liability litigation
through increased product costs.333 Increased consumer demand allows
manufacturers to price accordingly, which can then mitigate the impact of
adverse products liability judgments. 334
Because of the expected safety benefits of OAVs, and the demonstrated
trend of consumers making purchases based on safety, automobile
manufacturers will need to succumb to market forces and produce
OAVs.335 Ultimately, the demand for OAVs will outweigh any perceived
liability risks, and, because costs are borne by consumers, increased
liability will not be a dire concern for manufacturers. 336
327
Id. at 15.
See MATTHIAS KUEHN ET AL., GERMAN INSURERS ACCIDENT RESEARCH, BENEFIT
ESTIMATION OF ADVANCED DRIVER ASSISTANCE SYSTEMS FOR CARS DERIVED FROM REAL-LIFE
ACCIDENTS 1, available at http://www-nrd.nhtsa.dot.gov/pdf/esv/esv21/09-0317.pdf.
328
329
See id.
Id.
331 See McCarthy, supra note 325, at 541. Remaining liability concerns may influence how
these products are marketed. See ROBERT D. ERVIN ET AL., ITS RESEARCH CENTER OF
EXCELLENCE, UNIV. OF MICHIGAN, ADAPTIVE CRUISE CONTROL: AN INDUSTRY OUTLOOK ON
PRODUCT FEATURES AND MARKETING 49 (1997), available at http://deepblue.lib.umich.edu/
handle/2027.42/1212 (discussing manufacturer reluctance to stress the safety benefits of ACC
for fear of liability).
330
332

Mackay, supra note 148, at 199; see Mark Geistfeld, Note, Imperfect Information, the
Pricing Mechanism, and Products Liability, 88 COLUM. L. REV. 1057, 1064 (1988).
333
334 See WILLIAM BOYES & MICHAEL MELVIN, MICROECONOMICS 131 (7th ed. 2008) (If the
price elasticity of supply of an item is large and the demand for it is price-inelastic, then the
firm can raise the price without losing revenue. In this case, the firm can pass on cost increases
to the consumer . . . .).
335
Cf. Ctr. for Auto Safety v. Peck, 751 F.2d 1336, 1352 n.11 (D.C. Cir. 1985) (discussing the
competitive nature of the automobile industry as driving the need of one manufacturer to
follow the lead of another when profitable).
336
Geistfeld, supra note 333, at 1064.
616
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v. 46 | 581
CONCLUSION
Autonomous vehicles have great potential to change our lives for the
better. As humans, we are fallible, andas the statistics showfallibility
leads to fatalities. Autonomous vehicles have the potential to cut the
number of lives lost each year by as much as halfOAVs would save lives
far beyond the number protected by seat belts and air bags. While there is
great potential for safety, the remaining concerns, coupled with
manufacturer liability, will dictate the pace of OAV implementation.
Although complex, OAVs function much like the cruise control that exists
in modern cars. As we have seen with seat belts, air bags, and cruise
control, manufacturers have always been hesitant to adopt safety
technologies. Despite concerns, products liability law is capable of
handling OAVs just as it has these past technologies.
While the novelty and complexity of OAVs are likely to preclude
plaintiffs from proving defect under the consumer-expectation test, as
implementation increases this likelihood may decrease. Under a risk-utility
analysis, manufacturers will stress the extraordinary safety benefits of
OAVs, while consumers will allege that designs can be improved. In the
end, OAV adoption will benefit manufacturers. Although liability will fall
on manufacturers when vehicles fail, decreased incidences and severity of
crashes will result in a net decrease in liability. Further, the combination of
LDWS cameras and EDRs will drastically reduce the cost of litigation. By
reducing reliance on experts for complex causation determinations, both
manufacturers and plaintiffs will benefit. In the end, obstacles to OAV
implementation are more likely to be psychological than legal, and the
sooner that courts, manufacturers, and the motoring public prepare to
confront these issues, the sooner lives can be saved.

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GARZA FINAL (DO NOT DELETE)

Look Ma, No Hands!: Wrinkles and

In October 2010 Google unveiled that it had developed and

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New England Law Review

Media outlets around the country carried the storysome championed it

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Wrinkles and Wrecks in the Age of Autonomous Vehicles

realized.8 Although automatic technologies are increasingly being

See infra Part I.A.

See infra Part 0.

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Paving the Road

Autonomous vehicles are the next step in a line of safety devices

See Thrun, supra note 5.

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Wrinkles and Wrecks in the Age of Autonomous Vehicles

been hailed [t]he most under-hyped, but most important, technology

Carley, supra note 21.

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Carley, supra note 21.

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Wrinkles and Wrecks in the Age of Autonomous Vehicles

Autonomous Vehicle Technology: Then and Now

Although car companies have been conducting autonomous vehicle

Thrun, supra note 5.

See Urban Challenge: Overview, supra note 47.

Thrun, supra note 5.

Thrun, supra note 5.

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Overridable Autonomous Vehicle Implementation and

Engineers estimate that the autonomous car could be road-ready in

Markoff, supra note 7, at A18 tbl.

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See infra Part II.B.

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RESTATEMENT (SECOND) OF TORTS 402A (1965).

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Defects Leading to Crashes

Defects that cause accidents are typically defects in manufacturing, but

See KIELY & OTTLEY, supra note 73, at 138-39.

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complex products like automobiles.91 Thus, while an ordinary consumer

See AM. L. PRODS. LIAB., supra note 76, 17:32, at 76-77.

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Defects That Enhance Injury: The Concept of

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death from a motor vehicle accident.110 Crashworthiness refers to a

49 U.S.C. 32301(1) (2006).

391 F.2d 495 (8th Cir. 1968).

391 F.2d at 496-97.

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Seat Belt Struggles