Page - (000608) - in Autonomes Fahren - Technische, rechtliche und gesellschaftliche Aspekte

Product Liability Issues in the U.S. and Associated Risk Management588 26.5 Managing the risk of autonomous vehicle product liability Having covered the nature of product liability, the potentially huge exposure for losses, juror anger that leads to huge jury verdicts, and the nature of product liability, I now turn to the issue of how manufacturers can manage the risk of product liability litigation.17 First and foremost, managing these risks requires a proactive approach. By planning today, manufacturers can be prepared for the inevitable suits later. First, planning can enable them to make safer products that are less likely to cause litigation-triggering acci- dents in the first place. Second, by planning ahead, manufacturers can increase their chanc- es of winning the cases that accidents do trigger. A proactive approach to design safety with a comprehensive risk management program establishes upfront a manufacturer’s commit- ment to safety. When the inevitable suit happens later, the manufacturer’s counsel has a story to tell the jury as to why its products were safe and how the manufacturer cared about safety. Second, manufacturers should consider the commitment they make to product safety using such a proactive approach. One commentator stated, “The most effective way for [counsel for] a corporate defendant to reduce anger toward his or her client is to show all the ways that the client went beyond what was required by the law or industry practice.” [24]. Meeting minimum standards is insufficient because of juror skepticism about the rigor of standards set or influenced by industry and because jurors expect corporate clients to know more about product safety than a “reasonable person” – the standard for judging the conduct of defendants under the law [24]. “A successful defense can also be supported by walking jurors through the relevant manufacturing or decision-making process, showing all of the testing, checking, and follow-up actions that were included. Jurors who have no familiarity with complex business processes are often impressed with all of the thought that went into the process and all of the precautions that were taken.” [24] Even though accidents do occur, and in any trial setting an accident or problem did occur, a defendant’s proactive approach would show the jury that the manufacturer tried hard to do the right thing [24]. Consequently, efforts to go above and beyond the minimum standards would diffuse juror anger and mitigate the manufacturer’s risk. Third, manufacturers should recognize that risk management is a process that begins with a careful risk analysis looking at the types, likelihood, and impact of issues in the design of AVs. Once a risk assessment is complete, they can review the results and analyze changes in design and engineering practices to address these issues, prioritize risks and risk mitigation measures, and implement the prioritized risk mitigation measures [34]. In connection with the risk management process, manufacturers can obtain guidance from a number of standards bearing on risk management and safety: 17 I speak here of product liability litigation, although the risk management techniques here also apply to preventing the need for costly product recalls.