The Foreseeable Misuse of Semi-Autonomous Vehicles
An important question for autonomous vehicles is whether our failure to pay attention to the road at all times or to safely intervene a bar to recovery against the manufacturer? Today, I will discuss the application of the misuse doctrine–though other defenses may be applicable in such situations–and its application to operators of level 2 and level 3 autonomous vehicles not paying attention while their vehicles are in autopilot or self-driving mode.
In products liability law, a product user’s misuse of a product is generally a bar to liability or otherwise greatly reduces the ability of a plaintiff to recover. Misuse, as we are discussing today, should be distinguished from product modifications or alterations, which we are not discussing today. In this sense, a product misuse is considered the improper use of a product. The general justification of the misuse doctrine is as follows:
[P]roducts are necessarily designed to do certain limited tasks, within certain limited environments of use, and that no product can be made safe for every purpose, manner, or extent of use. Considerations of cost and practicality limit every product’s range of effective and safe use . . . .
David G. Owen, Products Liability Law, Section 13.5 (2nd edition). One court has remarked:
We cannot charge the manufacturer of a knife when it is used as a toothpick and the user complains because the sharp edge cuts.
In a products liability action, the plaintiff–the person suing the product manufacturer–has the burden of proving liability, which usually means proving that the product was manufactured or designed defectively or otherwise had a warning defect. Some jurisdictions place the burden on the plaintiff to prove that he or she used the product properly, while other jurisdictions consider misuse an affirmative defense that must be asserted and proved by the product manufacturer.
Manufacturers of level 2 autonomous vehicles have instructed us that we need to pay attention while the vehicle is driving itself. Our decision not to pay attention to the road is likely a misuse of the technology and may also be the cause of the accident.
However, not every product misuse shields the product manufacturer from liability. We misuse products all the time. The misuse doctrine is concerned with unforeseeable misuses. A manufacturer has an obligation to design its product to protect its users from foreseeable misuses, whether that protection comes in the form of a design to the product itself or a warning. Although a manufacturer can address a misuse with warnings, courts routinely find that product manufacturers need to design the product to address the misuse, if there is a reasonable way to do so. As one court stated:
If there is an objectively foreseeable likelihood that a product will be subject to misuse and that that misuse will endanger users despite appropriate warnings, then warnings alone will not satisfy the manufacturer’s duty. In addition to providing warnings, the manufacturer must also take all other feasible measures required by a risk-utility analysis to make even anticipated misusers of the product reasonably safe.
As I explained in the Fatal Flaw of Semi-Autonomous Vehicles, these vehicles are based on a fatal flaw: us. Empirical studies (and common sense) support the idea we will not pay attention to the road, regardless of the warnings, while self-driving mode is activated, and that the companies developing autonomous technology are aware that we will not pay attention to the vehicle. As recognized by the Handoff Problem, manufacturers are aware that we will struggle to intervene when their technology requires our intervention.
Thus, our decision not to pay attention to the road is likely a foreseeable misuse, and our inability to intervene when needed is also foreseeable. For a manufacturer of this technology, a foreseeable misuse typically requires the manufacturer to warn of the misuse or design, if a reasonable design exists, to address the misuse. As Google learned, warning of the misuse and making people sign a form promising to pay attention at all times is insufficient.
The inability to warn against the foreseeable misuse necessitates manufacturers to incorporate precautions to protect against people from failing to pay attention and to facilitate a safe handoff from the autonomous technology to the driver. Products liability law, in this regard, does not require perfection from manufacturers; instead, manufacturers are required to implement reasonable precautions, weighing the benefits of such precautions against the costs of such precautions.
Automakers are implementing technologies to address these problems, such as steering wheel monitors, audible alerts, tiny cameras, and sensors. General Motors’ “Super Cruise” system utilizes a facial recognition system to watch the driver to ensure that he or she is paying attention to the road. When a person looks away from the road for too long, the Super Cruise system flashes lights and causes the driver seat to vibrate.
These safety precautions should help protect manufacturers assert misuse against products liability claims for their level 2 and level 3 semi-autonomous vehicles. However, it is unclear whether these precautions would be sufficient to preclude a jury from considering the issue of defectiveness, notwithstanding a misuse. And manufacturers that do not proactively address this foreseeable misuse will likely not be able to complain when their customers are unreliable copilots.