Products liability issues for embedded software in consumer applications

The widespread introduction of sophisticated and complex software and firmware into consumer products ranging from automobiles to home appliances has given rise to a new type of hazard to consumers related to software or firmware defects. Conventional products liability law requires that a plaintiff show that a manufacturing, design, or labeling defect that was the proximate cause of an injury in order to obtain damages from a defendant in the chain of distribution (manufacturer, distributor, or retailer). However, software or firmware is a list of instructions-not a tangible item, and the legal arguments that would be used by a plaintiff would not be the same as in a standard products liability cause of action. This paper identifies two major classes of plaintiff legal theories to argue for damages from manufacturers of products containing software or firmware defects. It then explains a traditional defense of adherence to industry standards or a common standard of care might not be sufficient. Finally, it describes pro-active engineering analyses based on practices taken from U.S. Department of Defense and Federal Aviation Administration standards that, if adhered to by the manufacturer, can be used as an effective defense.