Proximity-Driven Liability

44 Pages Posted: 6 Oct 2013 Last revised: 2 Sep 2014

See all articles by Bryant Walker Smith

Bryant Walker Smith

University of South Carolina - Joseph F. Rice School of Law; Stanford Law School Center for Internet and Society

Date Written: November 1, 2013


This working paper argues that commercial sellers’ growing information about, access to, and control over their products, product users, and product uses could significantly expand their point-of-sale and post-sale obligations toward people endangered by these products. The paper first describes how companies are embracing new technologies that expand their information, access, and control, with primary reference to the increasingly automated and connected motor vehicle. It next analyzes how this proximity to product, user, and use could impact product-related claims for breach of implied warranty, defect in design or information, post-sale failure to warn or update, and negligent enabling of a third-party’s tortious behavior. It finally flips the analysis to consider how the uncertainty caused in part by changing liability could actually drive companies to further embrace this proximity.

Keywords: torts, products liability, post-sale duties, duty to warn, enabling torts, foreseeability, reasonableness, robotics, privacy, big data, digital rights management, service model, autonomous driving, driverless cars, self-driving cars, automated vehicles, vehicle automation, telematics, OTA updates

Suggested Citation

Smith, Bryant Walker, Proximity-Driven Liability (November 1, 2013). 102 Georgetown Law Journal 1777 (2014), Available at SSRN:

Bryant Walker Smith (Contact Author)

University of South Carolina - Joseph F. Rice School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States


Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States


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