Robert S. Peck

Volume 73, Issue 5, 1305-1326

Technological innovation begets legal revolution. And tort law, as a creature of the common law, makes the most profound doctrinal leaps and does so more rapidly than any other area of law when technology changes our everyday lives to create new wrongs and demand remedies. History demonstrates tort’s unique ability to respond to the newest technologies, as it did with the appearance of railroads and later automobiles.

Today, once again, we are living in an age of great technological change, ushered in by ubiquitous smart devices. Computers, connected to other computers through the Internet, populate a wide variety of everyday items. Projections estimate that a trillion connected computers will span the globe by 2035, linking everyday products, homes and buildings, and even human bodies. Even today, computer connections revolutionized government services, interpersonal communications, modern education, healthcare delivery, and business relations.  And, as with every previous major societal change, the law struggles to keep up. Nowhere is that more evident than in the areas where duties and liability attach. Some of that is a function of old concepts and doctrines continuing to hold sway, given the tradition-bound and precedent-oriented nature of law. Yet, as with other liability-inhibiting doctrines, certain existing liability rules that may have once made sense will require reexamination and, perhaps, abandonment, as continued adherence to them becomes less a matter of considered choice than blind allegiance to a world that no longer exists.

This Article argues that products liability will undergo revolutionary changes to address liability and responsibility. It suggests that over-the-air updates, hidden technological capabilities, and susceptibility to hacking will require new standards that require manufacturer accountability that track reasonable consumer expectations. As a result, the Article predicts that the relatively new emphasis on a risk-utility approach that imposes proof of a reasonable alternative design will have a short shelf life because of the insensibility of imposing on a plaintiff the need to examine and improve upon millions of lines of computer code.  It also suggests that what justice demands as a measurement of proximate cause will also shift away from rigid standards to what a manufacturer knew or should have known, what it should have done, and when it should have done it. Moreover, personal jurisdiction will require reexamination when the product through its connectivity with the manufacturer for updates and real-time monitoring, as well as proprietary software it continues to own, never actually leaves its maker’s remote but ever-present hands.