By W. Bradley Wendel

Abstract
Technology often promises increased safety in the form of reduction of human errors. One of the major arguments for the move to semiautonomous and “driverless” cars is the expected significant reduction in road accidents caused by driver carelessness. This evolving technology may be outrunning the development of legal principles that apply to the interaction between sometimes careless users and machines with design features intended to mitigate the risks resulting from human error. Products liability analysis tends to focus either on a product’s design or user carelessness. In the context of a product’s use, there is a dynamic relationship between technological solutions to risks and human behavior. The attempt to design out a persistent pattern of accidents caused by human error can lead to a new, perhaps unanticipated, and possibly even more dangerous pattern of accidents caused or exacerbated by the technology. For this reason, it is essential that products liability law proceed from a systems approach, not considering product design and user error in isolation. A systems approach to risk management sees safety as an emergent property resulting from the interaction between users and machines and their environment. It also focuses on the risks associated with latent errors—those made by product designers and engineers seeking to foresee the actions of human users, though sometimes introducing new and unanticipated dangers.

This Article argues that a systems approach to accidents involving technologically advanced products, taking into account the relationship between product design and foreseeable carelessness by users, is essential to ensuring that the law of products liability does not have a negative impact on the underlying goals of this area of law, including the promotion of increased user safety, innovation in product design, and the affordability of useful products. It is not a reformist project, however, because to a significant extent, the modern law of products liability builds in elements of systems thinking. For example, the design-defect standard considers the comparative benefits to product safety of both a potential redesign of the product and the user’s ability to avoid the danger by the use of reasonable care. It also takes into account the possibility of providing additional warnings and instructions to users as an alternative to requiring a redesign of the product. Existing doctrines of comparative fault and apportionment of liability recognize that manufacturers and users share responsibility for safety, and that user carelessness may in some cases be a risk that requires the manufacturer to adopt a redesign or provide additional information. In short, the legal framework is already well designed to incorporate a systems approach into the analysis of accidents involving interactions of humans and machines, as long as courts and lawyers understand it correctly.

Download the full article (PDF) here.
Westlaw | Lexis

Recommended Citation
W. Bradley Wendel, Technological Solutions to Human Error and How They Can Kill You: Understanding the Boeing 737 Max Products Liability Litigation, 84 J. Air L. & Com. 379 (2019).