As automakers design vehicles with the latest smart tech, we face a crucial question: What happens when smart technology that is supposed to increase safety not only fails but exposes drivers to greater safety risks?
When automakers rush to release affordable vehicles equipped with the newest, bleeding-edge smart tech, they may not dedicate appropriate resources to ensure the safety of their products. Indeed, class action litigation against automakers for smart-tech solutions that threaten vehicle occupants’ and the public’s safety is on the rise.
Almost always present in these cases are allegations the automaker (and often its supplier) cut corners, did not perform necessary safety tests, ignored poor testing results, or used inferior lower-cost materials. Allegations that manufacturers delay in warning the public of the defect and issuing a recall to maintain profits also seem omnipresent.
Takata Airbag Case
For example, former airbag manufacturer Takata used a cheap but highly unstable chemical ammonium nitrate as a propellant in their airbag inflators to make their product more cost effective to automakers, who then, as plaintiffs in the case alleged, failed to conduct proper testing or ignored poor product test results.
The tragic result: several vehicle occupants were injured and over a dozen killed when their airbag violently exploded, rupturing the airbag cloth and shooting metal fragments at vehicle occupants. The Japanese airbag company hid from consumers and the public incidents of ruptures. This failure to recall led to more injuries and deaths from ruptured airbags.
Similarly, plaintiffs in a case recently filed against Mazda experienced their automatic collision avoidance smart brakes triggered when there was no vehicle or object in sight, exposing them to the risk of a rear-end collision.
Automakers and their suppliers have a duty to properly and conscientiously design and test smart tech before releasing vehicles equipped with it to consumers. When manufacturers discover their products are defective and unsafe, they have an even greater duty to inform the public.
Unfortunately, continued sale profits and recall cost avoidance have motivated manufacturers to avoid alerting the public and issue recalls. These immediate cost-saving tactics, however, can be more costly for automakers in the long term, as more courts are allowing plaintiffs to seek benefit-of-the-bargain damages; consumers are able to recover damages for the amount they overpaid for their vehicles because it was not safe.
The difference in price between a safe and potentially deadly vehicle are the measure of damages, even if the defect ultimately did not “manifest” in the consumers’ vehicle.
A New Era: Technology—Buyer Beware
The incorporation of smart tech in vehicles is relatively new and fast-growing. One springing smart tech is connectivity or connected vehicles, which enables cars and smartphones and other devices to communicate and exchange information with one another.
Business Insider Intelligence expects that 82% of all cars shipped in 2021 will be connected. While the benefits of connected vehicles abound, they also pose serious privacy and safety risks in the event of unauthorized access.
If not properly encoded, hackers may be able to take control of vehicles’ steering, speed, brakes, lights, and other features. It may also allow access to confidential or sensitive information, leading to data-breach liability for the automaker.
Over the past years, class action litigation for safety defects in automobiles has been on the rise (i.e., Toyota unintended acceleration defect, GM ignition switch defect, Takata airbag defect, TRW airbag defect, and the new Mazda smart brake defect). The National Highway Traffic Safety Administration (NHTSA), a federal government agency within the Department of Transportation, regulates safety standards in the automobile industry, but it realistically cannot keep up with smart tech.
Moreover, by the time NHTSA interacts with automakers about a particular safety defect, the defect has often already led to several injuries or deaths. Even though NHTSA has become more proactive dealing with safety concerns, class actions for the most part have become the primary tool or consumers to recover and hold manufacturers accountable, putting the onus on the buyer to call automakers to task for safety concerns.
Liability for Automakers on the Rise
Consumers are holding automakers and their suppliers accountable. Not only are automakers and their suppliers strictly liable for personal injury claims resulting from their design or manufacturing defects and/or failure to recall unsafe products, but they can also be liable to all purchasers of their defective product under the previously mentioned benefit of the bargain theory of damages.
Consumers rely on either automakers’ affirmative representation that their vehicles were safe or the knowing omissions that their vehicles were unsafe. Automakers must invest the required time and resources in ensuring their products are safe before release. Poor or questionable test results cannot be swept under the rug.
Once their vehicles do hit the market, automakers must act swiftly to investigate and alert the public of any safety concerns. The failure to do so can lead to widespread consumer injury and long legal battles for automakers.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Author Information
Lea P. Bucciero is a partner at Podhurst Orseck P.A., a Miami-based firm specializing in complex litigation, including class action and multidistrict litigation, aviation litigation, products liability, and personal injury. Lea is representing plaintiffs in the recently filed Smart Brake defect case against Mazda, as well as other automotive defect cases, such as Takata, Mercedes headrest, and Toyota Camry HVAC litigation.
Alissa Del Riego, is an attorney at Podhurst Orseck. She serves as counsel on the recently filed Smart Brake defect case against Mazda, as well as other automotive defect cases, such as Takata, Mercedes headrest, and Toyota Camry HVAC litigation. Alissa is also an assistant professor of business law at the University of Miami Herbert Business School.
2020-02-20 09:02:32Z
https://news.bloomberglaw.com/tech-and-telecom-law/insight-smart-auto-tech-is-shifting-risk-liability-landscape
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