When automakers can tell which customers are speeding

by Walter Olson on January 20, 2014

The capabilities of onboard GPS systems keep getting more impressive. And the product liability implications might nudge Detroit into using the information in ways unwelcome to customers, for fear of being blamed otherwise for crashes they might have prevented. [Volokh]

{ 3 comments }

1 Curmudgeonly Ex-Clerk 01.20.14 at 3:30 am

Volokh’s premise seems unsound to me. His discussion more or less equates foreseeability with potential liability. With respect to automotive companies, Volokh posits that courts might recognize a duty to supervise the use of their products in real time nationwide and report certain otherwise contextless data (e.g., speeding infractions) to local law enforcement authorities timely enough to permit intervention.

In Texas, the jurisdiction with which I am most familiar, recognition of such a duty runs counter the established principles of tort law. For example, courts consider more than mere foreseeability when assessing whether to recognize and impose a new duty. See Greater Houston Transp. Co. v. Phillips, 801 S.W.3d 523, 525 (Tex. 1990) (including “the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant” as factors to consider in assessing existence of duty). Even if technologically feasible, it is hard to imagine that the expansive duty envisioned by Volokh would not entail rather significant burdens.

Texas law also recognizes that third parties typically do not owe a duty to prevent harms to others in the absence of some special relationship. See Torrington v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000) (“Texas law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances.”); San Benito Bank & Trust Co. v. Landair Travels, 31 S.W.3d 312, 321 (Tex. Ct. App. 2000) (regardless of foreseeability, no common-law duty to report crime owed to public to protect it against future conduct). The arms-length relationship between a product maker and its customers (who generally purchase the product through an intermediary retailer) is not such a special relationship. This too undermines Volokh’s ostensible duty, given that it largely seems premised on public safety or the safety of third persons.

Texas law could be more idiosyncratic in this regard than I imagine, but I don’t think so. Torrington, for example, relies in part on blackletter law stated in the Restatement (Second) of Torts for the proposition stated above. Volokh’s premise is creative, but his creativity is designed to permit him to discuss possible intersections between privacy and tort law, rather than being a rigorous treatment of the latter.

2 William Nuesslein 01.21.14 at 7:40 am

“ladies and gentlemen of the jury, ACME autos could have prevented the death of johnnie for a couple lines of code> I am sure you will hold ACME to account.”

Maybe I am dense, but I don’t see why the argument as I presented would fail in any American court.

3 Curmudgeonly Ex-Clerk 01.21.14 at 3:03 pm

William Nuesslein:

The claim should never get to a jury, because, among other things, there is no such duty and no appellate court is likely to recognize one under prevailing tort standards. Other likely fatal defects to such claims include the lack of causation inherent in a such theory of liability: i.e., if A had reported to B that C was speeding then B would have halted C before C injured or killed D. Given limited police resources and response times, this theory of causation is dubious to say the least.

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