December 2009 Archives

As the complexity and sophistication of robotic products increases, so too will increase the cost of proving liability. This cost will effectively close the courthouse doors to many who are injured. Manufacturers, through talking heads on TV, economic experts, pundits and so on are likely to lobby the public, the congress and state legislatures (a) on the need for immunities from suit to "protect jobs" (that probably have been exported to foreign countries) or to protect the "industry" so we don't fall behind other countries in robot production; or (b) they will seek the creation of additional procedural hurdles in the court systems and legal process to make it impossible for an injured person to hold a corporate manufacturer responsible before a jury.

New remedies or procedures will be needed to level the playing field so that economics alone do not dictate who can bring a lawsuit. The time may have come for the cost of proving liability to be included in the damages that are recoverable by an injured party who wins at trial after having made a settlement offer which was less than the jury verdict.

Without some mechanism to offset the cost barrier to holding such manufacturers responsible for the injuries they cause and to encourage them to have adequate levels of insurance coverage, their licenses to manufacture complex and sophisticated robotic devices will become, thanks to the high cost of litigation, licenses to maim and kill. That would be a world like the Empire Luke Skywalker fought against. It will be a world where the court system serves the powerful at the expense of the individual. In the rush to a future where R2Ds and C3POs move among us, let us not forget that it is the individual who is paramount, because when the individual is protected, each and every one of us is protected; but when it is the wealthy and powerful who are protected, then the rest of us live in danger.

In the movie Ghostbusters, the ghostbusters' advertising slogan asked - who you gonna call? As we move forward into a world with increasingly complex products, we need to remember this question and be sure that the justice system keeps the court house doors open to individuals injured by sophisticated and complex products of all kinds.

In Star Wars when R2D2 and C3PO are sold to Luke Skywalker's uncle, he was looking for droids (thinking robots) to operate his farm equipment. Nobody asked - who made these things and who is at fault if they malfunction and burn down my workshop, destroy my equipment or injure anybody? The Star Wars script did not call for product malfunction and mayhem to create a personal injury law saga. However, Murphy's law is written into the script of real life. If accidents can happen, they will.

We have cars that parallel park themselves. We have Roomba vacuum cleaners that roll around the house on their own, moving from room to room, avoiding stairs, even plugging themselves into their docking station when their battery gets low. We have industrial robots in factories and robots used by the military in Iraq to detect and inspect bombs. The day is coming when robots will be moving around among us, operating not by direct human control but on artificial intelligence and other programs. Like the various products that have come before them, these robot devices will malfunction and injure people. It may be a car that drives itself through a cross-walk filled with pedestrians, or a janitorial robot bumping someone and knocking her down a flight of stairs, or a robot child caretaker that restrains a child and breaks his arm. Product failures and malfunctions are a fact of life that is not going to change.

Today when a machine or appliance causes a fire that burns down a house or kills people sleeping in their home, traditional product liability law determines responsibility for the loss of property or life. In these lawsuits, lawyers hire engineers to identify the malfunction that caused the fire and to determine whether that malfunction was caused by negligent design or negligent manufacture, alteration of the product during repairs or maintenance, abuse of the product, or a failure to warn about the fire hazard and what to do to prevent fires. In a typical defective product case, the cost for experts ranges from $75,000 to several hundreds of thousands of dollars. This litigation price tag alone prevents many legitimate cases from being brought - a form of tort control in and of itself.

Now along comes R2D2, adding artificial intelligence to the list of potential causes of product malfunction. The cost of litigation will be even greater as an additional class of experts will be needed to determine what part the computer software played in the malfunction. They will have to determine if the defect was in the original programming, or was it due to hacking or radio/ELF/microwave or other electrical interference, or to downloading a defective software patch, or downloading an updated version of the original program, or did the addition of a new program cause a conflict with the software in the robot in which the interaction of two non-defective programs caused a glitch that resulted in the injury? Determining the guilt or innocence of these ghosts within the machine will be difficult and expensive.