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