Vehicles are more complex now, than ever, offering incredible and exciting technology, including self-driving features. But as innovation continues to rapidly change the automotive industry, can we expect the same innovation to impact the legal landscape giving way to new and unique theories in product liability actions and/or impacting the defenses asserted by defendants? The short answer appears to be, “not yet.”

Some of the most notable legal headlines with respect to automobile innovation deal with self-driving features. Two recent California juries have found in favor of defendant Tesla with respect to its Autopilot function and claims of Tesla’s negligence. While those cases dealt with claims for negligence and strict liability, a Court in Fort Lauderdale, Florida may soon hear a case alleging claims of intentional misconduct and gross negligence, as well as punitive damages.

In September 2023, after engaging in three years of litigation, Plaintiff Kim Banner filed a motion to amend to assert a claim of punitive damages against Defendant Tesla. Kim Banner, as Personal Representative of the Estate of Jeremy Banner, originally sued Tesla under theories of negligence and strict liability. The trial court found that Plaintiff sufficiently presented a reasonable showing of proffered evidence which could provide a reasonable basis for the recovery of punitive damages—namely: (1) Tesla knew the vehicle at issue had a defective autopilot system and allowed the vehicle to be driven on roads not suitable for said technology, (2) despite knowing these deficiencies, Tesla marketed the vehicle in a way that greatly overestimated the vehicle’s capabilities and hid deficiencies, and (3) Tesla had knowledge of a substantially similar accident involving similar circumstances without efforts to correct the defect. In December 2023, Tesla appealed the trial court’s ruling. The appeal is ongoing, Tesla Inc. v. Kim Banner, 4th District Court of Appeal, State of Florida, No. 4D2023-3034.

The Banner case brings to light additional complex legal issues and theories, which may significantly impact the way in which defendants defend these types of cases moving forward. With that being said, the two recent California jury verdicts that found for the defense suggest that the injured party’s theory of the case and the main defenses to product liability actions have not yet shifted. As it relates specifically to the litigation involving Tesla’s Autopilot function, it is evident that arguments relating to the injured party’s misuse of the function, failure to heed warnings, failure to mitigate injuries and damages, the manufacturer’s compliance with government standards, and/or comparative negligence have proven successful at trial.

When it comes to a plaintiff’s claims against an automobile manufacturer like Tesla for design defect, manufacturing defect, negligence, or strict liability, for example, the defense arguments identified above—misuse, failure to heed warnings and to mitigate injuries and damages, compliance with standards, and/or comparative negligence—remain strong arguments to make. Particularly, when the self-driving feature is implicated. In the two recent cases in which Tesla obtained defense verdicts, Tesla took the position that the driver failed to take corrective action in order to avoid the accident, i.e., one of the drivers failed to intervene once it was clear that the Autopilot function was driving the vehicle into the curb, and the other driver failed to take hold of the steering wheel to disable the Autopilot function. These arguments, and Tesla’s success with them, suggest that juries may continue to rely on common sense and their own driving experiences to make decisions regarding fault.

Whether these same defenses will need to take on a different form with the addition of claims for intentional misconduct, gross negligence, and punitive damages, such as in the Banner case, remains unknown. It remains to be seen whether the allegations suggesting that the defendant’s intent and purposeful behavior contributed to or caused the accident will change the jury’s perspective as it relates to placing the blame on the injured party, but there is no question that the addition of such claims will add additional layers to the defense of automotive product liability claims as technology continues to evolve. What we do know, however, is that as the automotive industry continues to develop and become more technologically advanced, automobile manufacturers may face more claims against them. Based on the current state of recent litigation, claims for design defect, manufacturing defect, negligence, and/or strict liability will likely be alleged when, for example, there is an automobile accident where the Plaintiff is alleging that the Autopilot function is to blame. Whether the Banner case will go to a jury with the additional claims for intentional misconduct and gross negligence has not yet been determined. It is also not yet known whether the impact on automobile manufacturers’ avenues of defense will shift if the defendant’s intent and willful conduct is implicated. However, recent defense verdicts could be an indication that comparative negligence principles and elements like driver safety and etiquette (e.g., placing one’s hands on the steering wheel to avoid an obvious risk) will continue to carry significant weight in the courtroom.

Written with the assistance of Glenn Asuo-Asante, a summer associate in Husch Blackwell’s St. Louis office.

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