“Human FlyPaper” Patent for Self-Driving Cars Raise Questions About Duty Owed under Tort Law

Here at Weil’s Product Liability Monitor, we have kept a close eye on developments related to self-driving vehicles.  Over the past year, we have examined what issues regulators, legislatures and Courts will have to grapple with if autonomous automobiles become a road reality (see here), how automobile manufacturers have responded to product liability concerns (see here) and the intersection between cybersecurity vulnerabilities and driverless cars (see here).  Next up is Google’s latest patent: “human flypaper.”

Last week the U.S Patent & Trademark Office issued a patent to Google for an adhesive cover that would attach to the hood of its driverless vehicles.  The sticky paper would be covered with a coating that breaks on impact to expose its “human flypaper.”  See patent article.  What’s the point?  In the event an autonomous automobile collides with a pedestrian, the human would stick to the hood of the car to prevent her from bouncing off of the car and incurring additional injury after the initial impact.

Google believes that in the unfortunate event of a collision between any vehicle—driverless or manned—and a pedestrian,  injury to the pedestrian is often also caused by the secondary impact once she ricochets off the surface of the moving vehicle, not just the primary impact.  Id.  The adhesive layer to Google cars targets this secondary injury.

To date, most automobile manufacturer safety features focus on occupants inside the vehicle—not pedestrians. By contrast, legislatures are concentrating their efforts on pedestrian safety initiatives.  For example, in November 2014, New York City embarked on a public safety campaign and passed legislation to lower the maximum speed limits on residential streets from 30 mph to 25 mph.  See article.

To bring a successful tort action, a plaintiff must of course demonstrate she was owed a duty by the alleged liable party.  Google’s affirmative steps to protect pedestrians outside of their vehicles raises questions about whether the company—or others like it—are creating a duty under which future plaintiffs may hold them liable for injuries.  This is particularly interesting if Google uses its newest invention on traditional cars, and not just its own driverless cars.

From a policy perspective, Courts may have to consider the deterrent effect that expanding duties may have on safety innovations.  In other words, is it wise to penalize Google for its undertaking measures to prevent these secondary impact injuries?  We will continue to seek answers to these compelling questions and developments in the realm of autonomous autos.