The role of safety analyses in reducing products liability exposure in "smart" consumer products containing software and firmware

Abstract

Sales of products with embedded computing devices are growing, and it is inevitable that serious injuries and deaths in which the firmware was a substantial or causative factor will occur. Liability for firmware defects, whether classified as manufacturing or design defects, will ultimately be tied to the diligence of the developer in production of safe code. If the developer made a reasonable effort to foresee potential hazards in the course of developing the requirements and designing the software or firmware, and if the development process followed by the designers and programmers was disciplined, the developer will have a substantial defense. If, on the other hand, the developer cannot document the effort made to foresee potential hazards and misuses of the product or can not demonstrate that the code was developed in a responsible and disciplined manner, then the exposure to liability will be much greater. This result is in accordance with the social objectives of advancing consumer products technology. Successful consumer products manufacturers will find the middle ground between exposing the consumer to excessive risk and depriving the consumer of useful services and features. Overly cautious manufacturers who do not invest in developing products that provide a greater service to the consumer will be threatened by more aggressive competitors. On the other hand, overly aggressive competitors will be exposing themselves to products liability claims because of injuries caused by imprudent release of defective products to the marketplace. There are millions of accidents caused by consumer products each year, and an increasing number will be related to the firmware contained in embedded computing devices. These accidents are unfortunately not totally avoidable. However, a proactive safety analysis and failure reporting methodology will reduce the likelihood and severity of such accidents over the long run. This outcome benefits society as a whole. In the shorter run, safety methodologies that demonstrate a sincere commitment to product safety will be an effective defense. Use of such a methodology will benefit manufacturers by reducing the likelihood of a plaintiff prevailing against the manufacturer.