Recently, our own Sam Coffey was invited to contribute to the Daily Business Review on Technology and the Law

The technology sector has outpaced legal liability issues. In recent years, we have seen lawsuits against major companies that are blurring definitions that were once taken for granted.

The world’s obsession with technology has certainly resulted in many positive initiatives. We have found convenient ways to shop. Telemedicine has emerged as an important health care option during the pandemic. Families and businesses are able to communicate “face to face” through their cellphones and laptops.

But one area of concern is in legal circles when it comes to products liability and personal injury cases. In short, the technology sector has outpaced legal liability issues. In recent years, we have seen lawsuits against major companies that are blurring definitions that were once taken for granted. For example:

• • Amazon has reinvented the retail sector. There have been advantages such as convenience and lower prices. But with this growth—especially during the pandemic—has come many lawsuits from plaintiffs claiming they have been injured by products purchased on this platform.

• • Uber and Lyft have provided affordable and convenient transportation services that have made traditional cab companies obsolete. But in the process they have faced lawsuits from people claiming they have been attacked by drivers.

• • Car manufacturer Tesla uses the cellphone app as the method for turning on the car. It, too, has faced lawsuits from people claiming that inefficient security on this system has caused injury.

These cases and others present challenges and opportunities for legal teams representing plaintiffs seeking damages and has expanded who can be considered liable parties. Clearly the use of technology platforms threaten to redefine legal strategies since there are challenges related to identifying those responsible for damages.

While these three companies are in different industries they have several similarities. They rely on technology and claim that these injuries, illnesses and deaths aren’t their fault.

Amazon claims it is not a sales company and is not responsible for injuries caused by products sold on its platform. The company claims it is merely a “facilitator,” much like a flea market and unlike a brick-and-mortar store that has responsibility for products sold on shelves and online. Many of these products claim to be safe, when they’re not—bike helmets, vitamins, etc. In addition, they are shipped from overseas and frequently can’t be traced when legal issues arise. Who is responsible? Amazon or the manufacturer?

Car manufacturer Tesla and an insurance company claim they aren’t responsible for a cellphone that has allowed a car thief to start the car, take a joy ride, and seriously injure a medical student at the University of Miami. Likewise, the insurance company is denying the claim saying it was “owner error” since the owner inadvertently left the phone in the car. Does Tesla have exposure because it created an interlock with their vehicle that makes it conveniently deadly? It would make common sense for the Tesla application in the cellphone to require some sort of a code, facial recognition or a fingerprint applied to the cellphone to start the car. But it does not. Who is responsible for paying damages? Tesla or the insurance company?

Transportation network companies (TNCs) like Uber and Lyft argue that common carrier doctrine doesn’t apply to them since they don’t provide transportation. They merely employ its platform to broker rides. It’s very similar to the Amazon defense. Is Uber liable when a passenger is injured or attacked? Does the company have a responsibility do background checks on drivers? Under the common carrier doctrine, transportation companies are responsible for the safe passage of their riders. Several states have passed laws siding with TNCs, making it harder for injured people to be compensated. One strategy supporting plaintiffs is that if Uber can derive algorithms to monitor financial performance, it can also use technology to identify erratic behavior, like a driver who pulls over on the side of an unlit street in the middle of a ride.

It’s apparent that these defendants are conveniently and desperately attempting to re-define their roles in the sales process that eliminates their liability. These cases point to the need for updating product liability law. Some suggestions include:

• • Products liability law should be updated so that e-commerce companies like Amazon are held to the same standard of care as brick-and-mortar retailers. Amazon claims that since it doesn’t “touch” products they are immune from lawsuits involving products that are dangerous.

• • Amazon and similar companies should be held to the standard of warranty law that the products they allow to be sold are fit for the intended purpose as advertised; are of merchantable quality and be held responsible for product defects that lead to injury under theories of warranty, strict liability and negligence as a supplier of the products sold through its website.

• • Amazon should be charged with quality assurance for the products that they allow to be sold. They should be tested and meet minimum industry safety standards.

• • If the seller of a product through the Amazon platform is not adequately insured to cover the harms and losses that a product causes, then Amazon should be responsible for those harms and losses because they allowed the dangerous product to be sold on their platform.

As these cases continue it is important for plaintiff law firms to raise the following points:

• • Older case law is relevant even though the delivery system is different (internet vs. brick & mortar, car key vs. cellphone, etc.)
  • Recognition that the list of defendants grows due to technology:

1. 1. 1. Amazon, not just the manufacturer
      2. Tesla, not just the driver who stole the car and injured an individual. Why make a cellphone like a key that doesn’t have proper security features—code, facial recognition, thumb print? An important strategy  is to  challenge safety vs. convenience

• • In these cases, we raise other points on behalf of our clients:

1. 1. 1. By placing goods in the market, there is a perception they are safe
      2. Challenge the defense claiming they are not bound by traditional rules of retail

• • Buyers probably not aware they are buying from a third-party seller

1. 1. 1. Same issue with Tesla and it’s liability with a “key” that isn’t properly secured
      2. With ride-sharing services there is a perception that drivers have been properly vetted, similar to the recent case where a Best Buy delivery man murdered a customer

The practice of law reflects changes in our culture and access to technology, while presenting many advantages and challenges. Law firms must continue to be aggressive and creative in representing clients in this ever-changing environment.

Sam Coffey, is managing partner of Coffey McPharlin, a Fort Lauderdale-based personal injury law firm specializing in trucking, dangerous drug, catastrophic injury, and personal injury law suits.