ITS America's Latest Legal Workshop Offers Some IV Insights
IVsource.net
31 October 2000

ITS players from the infrastructure, telematics, and vehicle industries met with legal experts for two days in October to take a look at liability issues impinging on ITS deployment.  Here are a few highlights relevant to the IV perspective.

Panels addressed "ITS and Business Methods," "E-Commerce," "ITS & Procurement/ Acquisition,"  "ITS & Shared Resources," "ITS & Privacy," and "ITS Liability."  Presentations tended to be very general and high level for the most part, but a few nuggets of insight emerged for the IV community within the sessions on privacy and liability.

Privacy for Black Box Data

In the ITS arena, most discussions on privacy revolve around "location privacy" for individuals, not so much data privacy.  However, Mike Harvey, VP and General Counsel for Landstar Systems (a major commercial vehicle operator), spoke on the topic of 'black boxes' for trucks.  His major point was that black boxes, if mandated, should be required for all vehicles, not just large trucks, so as to keep a level playing field.  Otherwise, for example, a reckless car driver without a black box could argue successfully in court that a truck driver was responsible for an accident, based on the truck's black box data showing that he had modestly exceeded the speed limit for some period of time.

Harvey noted a key law article on this topic by Donald Massey, a highway accident litigator with Adams & Reese LLP, in an article in the Southern Illinois Law Journal  (see http://www.law.siu.edu/lawjour/24_3/massey.htm).  He notes that the US National Transportation Safety Board (NTSB) is strongly advocating black boxes on trucks, but is doubtful they will help meet NTSB's goals.  In the article, he provides a history of onboard recorder use in other industries.  Then he makes the case that the owner of the vehicle should have "evidentiary privilege" over whatever data exists on his vehicle.

Massey recommends more study of the complex issue to determine the best way to proceed, and specifically recommends that the government create a privilege against disclosure and use of on-board recorder data in civil litigation.  He notes that the value of such recorders is in collecting aggregate data industry-wide, to better understand crash causation -- not in providing fodder for more lawsuits.

A Case Study: Lawyers v. Airbags

Ken Gluckman, Assistant General Counsel, DaimlerChrysler (DC), spoke about their experiences with airbag litigation, as a possible pointer to liability issues for emerging ITS/IV systems.

As airbags were coming into the market several years ago, the car OEMs noted that safety advocates overstated product capability, creating high customer expectations.  This process was not within the control of the OEMs.  They thus decided to develop the warning label now found on sunvisors within cars sold in the US.

Airbag suits are the most common type of lawsuit encountered by car companies, said Gluckman.  In these lawsuits, there are conflicting claims -- the bag should have fired, it shouldn’t have fired, etc.  Others claim the OEM didn't warn the users adequately of the risks.  The OEMs provide warnings which are in compliance with government regulation, but this is not necessarily enough.  "Litigation makes a mockery of federal safety standards," he says.  He seeks reforms which encourage, not hinder, new technology, and he recommends development of  standards which are sufficient to provide liability shielding.

In spite of this, DaimlerChrysler is winning almost all of their airbag lawsuits, says Gluckman.  The overall rate of lawsuits is about the same now as it was during an equal period prior to airbags -- as he puts it, lawyers will go after something, anything, to keep the litigation happening.  Even though his company is winning most lawsuits, they still incur major costs in legal defense.

Many times judges and juries do not appreciate the issues surrounding engineering design and the tradeoffs encountered, according to Gluckman.  However, he noted a key exception in an opinion written by Judge Jed Rakoff (November 1999), in which the judge thoroughly understood the issues and complexities of engineering airbags and interfacing with consumers.  The suit claimed that DaimlerChrylser was responsible for the death of an unbelted child, because the bag fired during a low velocity collision.  Rakoff's judgement cleared DC of liability.  (A copy of Judge Rakoff's decision is available upon request to IVsource, but be warned -- it's far from light reading.)

While many are concerned that liability issues will severely hinder the introduction of active safety systems on cars in the US, others point to the experience of DC to support the view that lawsuits are a fact of life for automotive OEMs ... and as long as they continue to defend themselves aggressively, advanced IV systems can enter the market successfully .

Navigating The Legal Jungle

In discussions on telematics liability, experts noted that the key issue for a judge is, on balance, are vehicles safer with these systems than without them?  And, of course, proving one side or the other of this equation is where the lawyers and their expert witnesses come in.

It was clear from the discussions at the workshop that customer expectation levels are critical and have to be managed.  Expectations which become inflated will likely cause trouble down the road.  The question was raised as to who controls this process --  OEMs or suppliers.  For commercial vehicle sales in particular, suppliers have a strong role in creating customer expectations for fleet managers.

And a word to the wise: watch your wording.  A quote from the OnStar safety and security system, which was highlighted in the workshop, may create trouble for them one day:   "In the event that your front airbags deploy, your OnStar equipped vehicle sends a signal and GPS location to the OnStar Center."  This seemingly simple message could create a customer expectation problem, as OnStar relies on the availability of a cellular signal ... a condition it cannot guarantee.

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... contact Jason Conley of ITS America at jason_conley@itsa.org, or see the in-depth IVI Liability Workshop report in the IVsource archives (from Winter 2000.)

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