Page - (000607) - in Autonomes Fahren - Technische, rechtliche und gesellschaftliche Aspekte

58726.4 Claims and defenses in product liability cases Moreover, Chapter 4 discusses design decisions programmers must make when creating the logic for an AV to handle the situation of when a collision is imminent and unavoidable and there is a choice between striking and harming different persons. For instance, an AV may face the dilemma of striking a motorcycle rider wearing a helmet or one without a helmet, and a programmer might decide that it is better, if a collision is unavoidable, to strike one or the other. If the programmer makes such a decision and designs the software to implement that decision, this kind of design decision could be the subject of a product liability suit from the person struck by operation of the software. 26.4.6 Defenses in product liability cases Defendants may assert a number of defenses against a product liability case. The most com- mon types of defenses relate to the conduct of the plaintiff. In some cases, the defendant contends that the plaintiff’s negligent conduct caused or contributed to an accident. The viability of a defense based on a plaintiff’s own negligence depends on state law and the type of claim, but a defendant may also use it as evidence of a superseding cause of an accident. In addition, some accidents occur because a plaintiff misused or modified a product. In some cases, a plaintiff is said to have “assumed the risk” of an open, obvious hazard, such as the possibility of being struck by a golf ball on the links. Finally, a plaintiff may not be able to recover all damages if he or she failed in some way to mitigate the damages. Many of these defenses may have limited application to persons driving AVs in auton- omous mode. If the plaintiff was not in control of the vehicle at the time of the accident, the plaintiff could not have driven carelessly. Once AVs enter the mass market, a seller cannot realistically contend that the plaintiff assumed the risk of driving a vehicle using new and untested technology. Nonetheless, it is likely over time that some people will modify their AVs or try to abuse the sensors or control systems for fun. In these cases, if an accident occurs, the defendant may point to this conduct as a defense. Moreover, defenses based on a plaintiff’s conduct could reduce or bar a plaintiff’s recovery when the plaintiff was not a driver of the AV, such as a pedestrian carelessly (or intentionally) darting out in front of an AV faster than any human or machine could react. The other key defense in AV litigation will likely be a “state of the art” defense to a design defect claim. The basis of this defense is that the manufacturer could not have pro- duced a safer design at the time of sale because safer designs were not technologically feasible then. Such a defense is valid in some states while not in others [13].16 16 Another typical product liability-specific defense is the economic loss doctrine, which bars product liability tort claims where the claimed damages are financial and not for bodily injury or damage to property other than the product itself. Moreover, federal law may preempt some state law claims, because U.S. federal law trumps state laws inconsistent with it. Also, if a product is meant to be used by a “sophisticated user” or provided by a “sophisticated interme- diary,” the seller may have a defense under certain circumstances, although this defense is un- likely to apply to AVs. Finally, if a manufacturer creates a product pursuant to government specification, it may have a “government contractor defense.”