A recent conundrum in evolving product liability law is whether software qualifies as a product or a service under various strict product liability laws. The intersection of the digital and cyber world with product liability torts presents a myriad of dilemmas not previously addressed in established caselaw.
The court’s decision in In re Uber Techs., Inc., 2024 U.S. Dist. LEXIS 169122 highlights the importance of the distinction between product defects and service-related issues in litigation against technology companies like Uber. “The Ninth Circuit once suggested in dicta “[c]omputer software that fails to yield the result for which it was designed” might appropriately be recognized as a defective product. Winter v. G.P. Putnam’s Sons, 938 F.2d 1033 (9th Cir. 1991). Nevertheless, the question has not been definitively answered.” In re Uber Techs., Inc., 2024 U.S. Dist. LEXIS 169122, *117-118.
The Court’s ruling in In re Uber Techs., Inc., 2024 U.S. Dist. LEXIS 169122 addressed the plaintiffs’ product defect claims, noting that the Uber app could be considered a product, although the alleged defects were more related to Uber’s services and business practices rather than the app itself. The Court examined the Restatement (Third) of Torts: Prods. Liab. § 19 which defines a product as follows:
(a) A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property that it is appropriate to apply the rules stated in this Restatement.
(b) Services, even when provided commercially, are not products.
Restat 3d of Torts: Products Liability, § 19
The Court analogized the claims to defective Apple Air Tags in that the Uber app failed to implement GPS-based safety alerts as a safety measure which was a design issue rather than an operational practice. In re Uber Techs., Inc., 2024 U.S. Dist. LEXIS 169122. The Court denied the Plaintiff’s motion to dismiss on this issue.
Jim Pattillo is a member of Christian Small, LLP’s Product Liability Practice Group. He is leading litigation counsel for insurance, product, and commercial clients and is based in the firm’s Birmingham, Alabama office. Mr. Pattillo represents numerous product manufacturers including software companies, medical device and life science companies, commercial product manufacturers, and numerous other US based manufacturers and distributors. Mr. Pattillo focuses exclusively on litigation and trial work. He has a twenty-year trial record in the courtroom that is extensive and successful including numerous seven and eight figure exposures with results routinely exceeding client expectations.
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