TINY TORTS: A LIABILITY PRIMER
It seems that so far people who are involved in the research, development and business of nanotechnology have understandably been concerned with four broad areas of the law:
Because of the importance it will play as nanotechnology comes out of the realm of theory and into the realm of industrial and commercial reality, I will briefly address today a fourth area of concern: potential tort liability for nanotechnologists.
In the developed world today, when people get hurt (or think they've been hurt), they very often file a lawsuit. Such suits usually assert "tort" claims and may result in huge damage awards against the people who design, build and distribute products and services. As a result, tort claims have become one of the most important shapers of industrial policy.
The first question, of course, is "What is a tort?" since the word is perhaps the least familiar to non-lawyers in the subjects mentioned above. Definitions of inclusion and exclusion have been proposed, the best perhaps being that a tort is a civil wrong, other than a breach of contract, for which the law provides a remedy.3 My own torts professor, James Treece (looking to the economic approach to law espoused by Judge Posner), proposed an analytical framework that may well appeal to this group, a formula:
T = D+B+C+H
or, one may recover damages "in tort" if there is a legal duty which has been breached, causing harm. I can attest that reciting the memnonic of "DBCH" has been a reliable guide to analysis and strategy in many cases over the years of my law practice.
The key starting element in this formulaic, functional definition, is duty, because unless the law recognizes a duty, there can be no initial claim in tort law. For those working to develop a new technology, a simple and correct working definition of torts is "the duties created by law other than those found in criminal or regulatory law or agreed to by contract." This definition points up that the area of tort law is something of a catch-all4, understood best in the first instance, at least, by what it isn't rather than by what it is.
The torts of real concern to nanotechnologists are those that deal with people who do things, design things, make things and sell things, and do so without the intent to harm others. Thus, I assume that nanotechnologists are no more inclined to commit libel and slander, for instance, than the general population, so we can set those "speech torts" aside for today. Likewise, while nanotechnology will almost surely make weapons of new and fearsome power possible, I assume that nanotechnologists themselves are no more likely to intend harm to others than the man on the street, caricatures of mad scientists notwithstanding. Over the many years of considering all the many ways that human beings can accidentally fold, spindle and mutilate each other and their property, courts and legislatures have boiled such "accidental action torts" down into two broad categories:
I will briefly discuss each of these in turn, with special emphasis on the kinds of claims nanotechnologists may face in the coming years and things they can do to minimize their exposure to tort liability.
II. NEGLIGENCE
From its inception, the development of a distinct legal duty bearing on the idea of negligent conduct was tied up with invention and technology. Prior to the 19th century, courts did not recognize any claim for "negligence" as such. This was probably for the simple reason that it was pretty rare that people actually did accidentally hurt each other: Propelled only by animal power, things didn't move very fast and it was easy to get out of the way. However, with the coming of industrial technology, most especially chemical explosives and steam power, the opportunities for accidental mayhem were greatly amplified.
The reliance on a general common law of negligence to address conduct by actors in a world characterized by a fluidly developing technology has been a hallmark of the classically liberal political philosophy of the Anglo-American world. In contrast to the attempts made in the so-called "Continental" or "Napoleonic" legal systems in which central legislatures define precise duties bearing on specific relationships and social situations, the common law's use of a general concept of negligence has been found to be best suited to a decentralized, unpredictable, open and, above all, market-driven society of innovation and invention.
A. Negligence, Duty and Reasonableness
Through the typically circuitous evolutionary route of the common law, liability in negligence has come to be seen as arising from harm proximately caused by an activity that creates an unreasonable risk of that harm. The basic duty imposed by negligence law is to avoid unreasonable risks to others. This of course merely begs the question of what is "reasonable", but the standby of the "reasonable person"5 standard of conduct has served the law well for a long time and likely will into the foreseeable future. Most importantly, the reasonableness standard has proven to be a flexible approach that adapts easily to advances in science and technology.
A classic case illustrates the concept and the process. In 1928, there was a violent storm off the Atlantic coast of the United States. The T.J. HOOPER, an ocean-going tow boat, was pulling coal barges when she was overtaken by the storm and two of the barges were lost.6 The owners of the cargo sued the vessel owners, alleging that the old T.J. HOOPER was unseaworthy. They claimed that she should have been equipped with the then-rare piece of equipment, a radio receiver, by which the skipper could have been warned of the approaching storm and taken evasive action. The vessel owners defended themselves by pointing out that the storm had arisen quickly, that no reasonable person could have foreseen its force or effect and that radios were not standard equipment on coastal tugs.
The case was decided by one of the legends of American jurisprudence, judge Learned Hand. (Yes, that was really his name.) Judge Hand held that the standard of reasonable conduct to be applied in negligence cases must evolve as technology did. When faced with the defense by the vessel's owners that most owners of coastal tugs did not use radios and that having one aboard was not the industry standard, judge Hand ruled that the question was not what was common, but what was reasonably possible and knowable to a person of ordinary prudence under the circumstances:
Is it then a final answer that the business had not yet generally adopted receiving sets? ... Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It may never set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse omission. . . . But here there was no custom at all as to receiving sets; some had them, some did not; the most that can be argued is that they had not yet become general. Certainly in such a case we need not pause; when some have thought a device necessary, at least we may say that they were right, and the others too slack.7
Decisions like The T.J. HOOPER point out another way of looking at the negligence standard or negligence duty that is often articulated in cases, that:
a person is held to the standard of a reasonable person with knowledge he had or should have had under the same or similar circumstances.
This definition of the most basic duty of tort law points to a concept that will soon be important for nanotechnologists and the societies in which they work, "state of the art"; for what is reasonably possible is the standard that the courts ultimately impose on society. No technology promises a more revolutionary impact on the state of the art in almost every human endeavor than nanotechnology.
B. Negligence, Causation and Foreseeability
Nowhere does the so-called "seamless web" of the law reveal itself more than in the difficult analysis of causation. Looking back at the formula for tort liability discussed above, one may breach a duty and another may suffer harm, but unless the breach causes the harm, there is no actionable wrong. Because of the complex interconnectedness of events in the world, in a real sense just about every prior event can be seen as a cause of some specific subsequent event. Time travel stories (and real history, for that matter) are replete with ironies arising from gargantuan effects resulting from seemingly unrelated and trivial causes. Considerations of what the law will hold to be an actionable cause of some specific event have lead courts into their most metaphysical musings. The legal literature of causation is large and dense, but in the context of negligence liability the problem has been reduced to one of foreseeable risk expressed by the term "proximate cause".
Perhaps the most insightful discussion of causation in law and ethics ever written is the decision of the great Benjamin Cardozo in Palsgraf v. Long Island Rail Co.8. The Keystone Cops facts of that case served as the focus of Cardozo's unraveling of the concepts of duty, breach, cause in fact, proximate cause and harm. Among the observations to be found in Palsgraf:
The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.. . .What we do mean by the word `proximate' [in causation] is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.
The formulation of proximate cause articulated in the Palsgraf decision is known to lawyers as "the zone of danger": A thing is said to be a proximate cause of harm if the result was foreseeable to a reasonable person under the same or similar circumstances. That element of foreseeability is most important to nanotechnologists, as the name of the first organization to consider nanotech implies.
C. Negligence and Nanotechnology
We can expect the duties of ordinary care imposed on people to evolve, eventually to evolve significantly and swiftly, with the advancement of nanotechnology. An example of a current nexus of tort duties may suffice to illustrate the sort of change we can expect. In recent decades, courts throughout the U.S. have imposed a whole new set of duties on landlords and other property owners relating to personal security concerns of their tenants and people who come onto their property to do business, known as "business invitees". The classic case of this type is the landlord who is held responsible for a criminal attack by a third party on one of her tenants, because the area is known to be one of high criminal activity.9 The landlord is held responsible to take reasonable precautions against entry by assailants into the public areas of the apartment complex. In this example, one can easily imagine that landlords will become a significant market for advanced nanotech security applications, driven by tenant suits asserting theories such as this. In the face of cases such as The T.J. HOOPER, it won't be a sufficient defense to say that most landlords don't employ nanotech tenant defense systems. Contemplation of potential negligence liability will tend to drive people toward new technologies of risk detection and avoidance in any arena where they may face exposure to such liability.
Efforts of organizations such as the Foresight Institute play a significant role in shaping the duties of ordinary care, the definition of the "reasonable person" and application of the limitation of proximate cause. A court can only push the standard of reasonableness and foreseeability onto a new plane if it is aware of advancements in technology. The general awareness of new technologies and their capabilities becomes the horizon toward which the common law of negligence steadily pushes standards of conduct. As with the definition of "state of the art" relevant to products liability law (discussed below), Foresight's activities in identifying risks and capabilities of new technologies will be a key element in defining the legal duties for nanotechnologists and the people who use their products. At this very meeting, we are defining the "range of apprehension" contemplated by Judge Cardozo in 1928, albeit at the extreme, a range of apprehension that may not bear on real cases until 2028.
The key questions are of possibility and probability. As the power of human technology increases, so does the possibility of control over consequences. As that possibility increases, the range of general tort duty also increases. Put simply, the law of negligence tells you that if you can take some precaution, and harm from failing to do so is reasonably foreseeable, then you fail to do so at your peril.
In practical terms, this means that developers of new technologies must engage in a process of risk analysis. The "reasonable person" standard means that the question is not whether you actually did review the possibility of harming others, but whether a reasonable person could have foreseen the harm in question if she had made such a review. Since you will be held to that standard, the only prudent course is to consciously face the potential hazards posed by a new technology or product and attempt to build in safeguards against those hazards. There is no "ivory tower" of pure science or engineering, insulated from the world of legal consequences.
Before leaving the subject of negligence we must briefly touch on a subject dear to nanotechnologists: Complex, autonomous systems. From the inception of speculation about advanced molecular-scale systems, attention has been focused on the possibilities presented by artificial intelligence and systems capable of executing complex processes on a purely autonomous basis. The concept of proximate cause as a measure of legal responsibility will be severely challenged as technologies with real AI are developed. Liability deriving from the activities of more or less autonomous software-controlled systems presents many thorny logical conundrums if claims are expressed in terms of the current shape of the law.10 Questions of whether software is a product or a service and who is responsible for harm proximately caused by complex computer systems are still being handled in widely divergent ways by the courts. 11 It has been suggested that AI systems will ultimately be treated as legal agents in the law, creating liability for those who give them their general direction12, a view that seems correct, although software design flaws will likely still be treated as product defects.
The ultimate dream of creating essentially universal, programmable, autonomous, molecular-scale tools will eventually challenge the traditional common law's notions of causation until, at the point that some form of truly intelligent artifact is developed, a creator and her creation will be seen as separate entities for the purposes of tort law. Because personal responsibility is the most fundamental foundation stone of tort law, the development of real, autonomous AI entities will likely result in a relative rarity in the common law; a discontinuity. It seems that a definite break-point will occur, beyond which the law will recognize a "synthetic person" whose acts are not ascribable to its creator.
III. STRICT LIABILITY
Although negligence liability is the primary area of concern in the everyday world of social and economic action, inventors and entrepreneurs are exposed to another species of duty and potential liability, known as "strict liability", which includes an important subset, known as "products liability". "Strict liability" has been defined as:
[L]iability imposed on an actor apart from either (1) an intent to interfere with legally protected interest without legal justification, or (2) a breach of a duty to exercise reasonable care, i.e. actionable negligence.13
The key concept is that theories of strict liability bypass the judgment of a person's conduct and base liability, in essence, only on the harmful result of the conduct, no matter how much conscious care may have been employed.
A. "Abnormal" or "Ultrahazardous" Activities
The traditional notion of strict liability has been applied to "abnormally dangerous things or activities" and, like the development of negligence law, was tied up with the advance of industrial technology. A seminal case is the 1868 English decision in Rylands v. Fletcher.14 In that case a mill owner built a reservoir on his land to power his machinery. The reservoir broke through the shaft of an abandoned mine and eventually flooded into the plaintiff's working coal mine. Apparently the facts were such that even a reasonable person could not have discovered the abandoned mine with the technology of the day. Rylands was held liable nevertheless, with language of great import to nanotechnologists:
[T]he true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.15
This broad holding was limited on final appeal to the House of Lords, where the rule was held to apply only to "non-natural" use of land, as distinguished from "any purpose for which it might in the ordinary course of enjoyment of land be used." 16 As Dean Keeton commented, "The emphasis was thus shifted to the abnormal and inappropriate character of the defendant's reservoir in coal mining country, rather than the mere tendency of all water to escape." 17
American courts have criticized and in many instances seemed to reject the "abnormally dangerous" characterization as a basis for liability without fault, expressing the opinion that such a rule is inconsistent with an expanding and innovative industrial society. However, most jurisdictions apply some form of absolute liability in accidents arising from what the Restatement of Torts calls "ultrahazardous activities"18 or "absolute nuisances"19. Dean Keeton's list of items that have been held to be such special cases is instructive:
water collected in quantity in the wrong place, or allowed to percolate; explosives or inflammable liquids stored in quantity in thickly settled communities or in dangerous proximity to valuable property; blasting; fireworks set off in the public streets; oil wells or abnormal mining operations; the accumulation of sewage; concussion or vibration from a rock crusher; and in addition such things as smoke, dust, bad odors, noxious gases and the like from industrial enterprises20
Strict liability appears to be reserved especially for new technologies. For instance, damage caused by aircraft to land-based property was originally seen as an obvious case for strict liability attaching to an "abnormal" or "ultrahazardous" activity, but is now increasingly seen to be something that can be governed by the "reasonable person" and "foreseeable harm" standards of negligence law.21
The import for nanotechnologists is obvious: No matter how many years the "nano-cognscenti" have been considering the possibilities and implications of nanotechnology, when the first unique applications of molecular manufacturing become reality, the law will likely consider them to be at least "abnormal" and, in the case of full-fledged assemblers, almost surely with the potential to be characterized as "ultrahazardous". A web search on the term "grey goo" will be sufficient for any plaintiff's lawyer to convince a court that the very founders of the discipline were willing to entertain scenarios that make the term "ultrahazardous" itself seem an understatement.22
B. Products Liability
In the realm of things bought and sold, the original default presumption of the Anglo-American law was simple and firm: caveat emptor. In the absence of fraud or failure to meet an express and specific warranty, a seller was not liable for harm caused to the buyer or, for that matter, in most instances to third parties harmed by a product.23 Although the development of negligence law began to provide some remedy to "strangers" harmed by a product24, the buyer himself was ironically left with little or no recourse for damages caused by defective products. Eventually, even buyers were afforded the protection of negligence law, and today manufacturers and sellers are held to the reasonableness and foreseeability duties of negligence law in (1) creating or failing to discover a flaw in their product or (2) in failing to adequately warn of some dangerous property of their products.25
As the industrial revolution gave rise to an economy based on wide access to mass-produced, increasingly complex consumer goods, the traditional limitations on the liabilities of manufacturers and distributers of those goods were seen as providing those economic actors with an unfair and unwise insulation from liability. Even negligence law was seen as inadequate, where the complexities of a global, industrial economy might make problems of proof of fault in negligence too expensive in comparison to the relatively minor harms that might be caused by now-ubiquitous mass-produced consumer goods.
Over time, as industrial technology began to create expectations of uniform and high quality in goods sold in everyday commerce, courts began to develop the idea of an implied warranty, i.e. that a buyer had the right to expect that goods are fit for the particular purpose of the buyer -- when those purposes are made known to the seller -- and that goods meet a basic common standard of "merchantability" when they are purchased from someone who deals in those goods. The Uniform Commercial Code, now the law in all of the United States, embodies the common law of implied warranty.26 Liability for breaches of implied warranties is imposed without regard to proof of fault: Essentially, a plaintiff need only prove that the thing broke and it shouldn't have by common expectations of quality. However, this liability extends only to the buyer of goods: Third parties (or, just as important, purchasers in a re-sale of the goods) harmed by defective products do not enjoy the benefit of implied warranties.
With the coming of complex, multi-layer distribution chains and manufactured goods that lasted long enough to be re-sold by non-merchants, courts began to impose strict liability to third parties on manufacturers and distributors. The trend began first with food products27 but quickly spread to all manufactured goods. Through an accelerated evolutionary process in this century, this law of "strict products liability" came to be expressed in the Restatement of Torts § 402A:
Special Liability of Seller of Product for Physical Harm to User or Consumer(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change to the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although . . .the seller has exercised all possible care in the preparation and sale of his product . . .
Although the concept of "reasonableness" is applied in strict products liability, its meaning is subtlety, but importantly, different than its meaning in the law of negligence. In negligence, it is the defendants' conduct that is judged by a standard of reasonableness; in products liability, it is the defendant's product that must not be unreasonably dangerous. The cases applying this law have also changed the standard of causation, requiring only that the defective product be only one "producing cause" of the harm alleged, instead of the sole proximate cause. In this way, the entire focus of risk and reasonableness is placed on the product.
Two standards have been promulgated for determining if a product is unreasonably dangerous or, as is often said, legally "defective": (1) the "consumer contemplation" test and (2) the "danger-utility" test.28 The former, which judges a product to be unreasonably dangerous if is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with the ordinary knowledge common to the community as to the product's characteristics, is considered to be significantly "pro-consumer". Business and industrial interests have opposed its application wherever possible. The second standard judges a product defective if the magnitude of the actual (as opposed to the reasonably foreseeable) danger outweighs the utility of the product. The latter standard is favored by inventors and entrepreneurs and it's application has been one of the rallying points of the "tort-reform" movement.29
The risk-utility test is tied up with the concept of the state of the art: The danger-in-fact is judged by the standards of the available science and technology at the time of manufacture. While this may appear to be acceptance of the "industry standard" defense rejected in the old T.J. HOOPER case, in fact it merely recognizes that a product should be judged by the standards of the knowledge available at the time it was designed or manufactured. Whether it was reasonable to use the knowledge is not the question, but whether it was possible; and then whether the cost of its employment was justified in light of the actual (as distinguished from foreseeable) risk posed by the product.
Over time three categories of product defect have been defined:
In each of these categories, which represent a simple common-sense analysis of the life-cycle of product development, the ultimate failure of the product is judged without regard to the reasonableness of the defendant's conduct.
C. Products Liability and Nanotechnology
The concept of "implied warranty" and "state of the art" and the latter's interplay with the three categories of potential product defects are of paramount importance to nanotechnologists and their financial and industrial partners. Just as the work of the Foresight Institute is laying the groundwork for a significant redefinition of the "reasonable person", likewise with each new development in molecular manufacturing, the definition of commercial expectations of product capability and quality and of the state of the art will be advanced. The oft-touted ability to manufacture products with atomic precision will revolutionize expectations of quality in cases of implied warranty and standards applied to manufacturing defects. With their stress on "design ahead" work, the first generation of nanotechnology pioneers are already defining standards of design excellence to which manufacturers will be held when they sell the first true nanotech products. Finally, as with the question of foreseeability in negligence cases, the years of projection of the possible uses and abuses of nanotechnology processes and products will create a ground upon which allegations of inadequate warnings will be made.
IV. LEGAL IMPACTS AND PRECAUTIONS
As I have attempted to point out above, there is no such thing as "pure science" or "pure engineering", somehow distinct from the world governed by tort law. Whether by definition of new standards that will be applied to new products and manufacturing processes, or as actors to be governed by those new standards, the people who are exploring the possibilities posed by molecular-scale manufacturing carry on their activities with influence on and exposure to tort liability. Two things can be done to ensure that the impact on the legal system is positive and that exposure to tort liability is minimized.
A. Clarity of Standards
Because the public writings of those who have been exploring the coming developments in nanotechnology will be used in the legal process, it is important that authoritative sources be clear about feasibility and probability. Although the courts are now engaged in a process of creating new safeguards against the wave of "junk science" that invaded the legal process in the last few decades30, it is inevitable that creative plaintiffs' lawyers will attempt to utilize legitimate speculation in the place of scientific certainty. Accordingly, prudent scientists and commentators should be careful to identify speculation as such and, wherever possible, attempt to quantify probability.
It is probable that some of those in the audience today will participate directly in the legal process of defining standards of reasonableness and state of the art. You will do so as parties to suits, as expert witnesses for others and as authors of standards that will be cited by lawyers, parties, expert witnesses and courts. Understanding the impact on the legal process of theoretical writing, practical design and economic product development will ensure that that participation is positive.
B. Risk Review and Management
As nanotechnology moves from speculation, through the process of scientific research into the manufacturing economy, it will become increasingly important to implement rigorous processes of risk review and management. Every process with the possibility of effect beyond the lab bench should be subject to a systematic -- and documented -- risk analysis.
Research and development managers will be held to a standard defined by the state of the art, and steps should be taken to bring that knowledge to bear on risk analysis. To the extent that formal standards committee are formed by professional organizations or governmental bodies, active researchers and would-be nanotechnology entrepreneurs should have effective representation on those committees.
When formal standards are promulgated, they must be brought to bear on on-going and future research and development projects; once again in a documented fashion. As academic research begins to move into industry, businesses intent on developing molecular manufacturing processes should form standing internal risk management committees and employ risk professionals from the insurance and legal professions to inform their efforts to bring products to market. While we may all scoff at the proliferation of sometimes silly-seeming warnings that now festoon almost every product, such labels can serve to insulate a company from products liability judgments based on findings of inadequate warnings. Likewise, design of "idiot-proofing" features into a product must be considered in the "risk/utility" calculus with which courts will inevitably second-guess the best-intentioned efforts of nanotechnology entrepreneurs. Venture capitalists will be more likely to invest in early nanotech ventures if explicit plans for risk management are included from the earliest stages of proposed new enterprises. Similarly, government regulations that could stifle innovation may well be forestalled if the nascent molecular manufacturing industry demonstrates a responsible approach to risk management.
Although nanotechnology promises revolutionary change in the conditions of human life, its effects will play out within an established framework of liability law that seems capable of accommodating it. Responsible leaders in the field will participate in a process of mutual influence between law, science and industry that will ultimately ensure that the technology is developed in a reasonable and responsible fashion.
NOTES
1. This paper was originally delivered as a talk to the Foresight Institute's Senior Associates gathering in Palo Alto in May of 1998. RETURN TO TEXT
2. Partner, Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. (http://www.liddellsapp.com). The views expressed here are the authors' only. I wish to acknowledge the able assistance of Davis Gilmer, an associate in my firm's intellectual property practice. RETURN TO TEXT
3. Prosser and Keeton on Torts, Fifth Ed., pg.2 RETURN TO TEXT
4. And is also somewhat incorrect in its generality, since some specialized areas of law -- such as the law of family relations -- also strictly fall within it.RETURN TO TEXT
5. Until the current era, universally known as the "reasonable man" standard. We have now learned that women, too, can be unreasonable.RETURN TO TEXT
6. The T.J. Hooper, 60 F.2d 737 (2d Cir 1932). RETURN TO TEXT
7. Id. At 740. RETURN TO TEXT
8. 248 N.Y. 399, 162 N.E. 99 (1928). RETURN TO TEXT
9. See, E.g. Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985). RETURN TO TEXT
10. See, e.g. Ballman, Software Tort: Evaluating Software Harm by Duty or Function and Form, 3. Conn.Ins.L.J. 417 (1997); Frank, Tort Adjudication and the Emergence of Artificial Intelligence Software, 21 Suffolk U.L.Rev. 623 (1987). RETURN TO TEXT
11. Ballman, 3 Conn.Ins.L.J. at 444-52; Frank, 21 Suffolk U.L.Rev. at 643-54. RETURN TO TEXT
12. Frank, 21 Suffolk U.L.Rev. at 653-54. Proposed changes to the Uniform Commercial Code would incorporate this agency theory of autonomous software entities:
SECTION 2B-102. DEFINITIONS.(12) "Electronic agent" means a computer program or other automated means used, selected, or programmed by a party to initiate or respond to electronic messages or performances in whole or in part without review by an individual.
SECTION 2B-111. ATTRIBUTION OF ELECTRONIC RECORD, MESSAGE, OR PERFORMANCE; ELECTRONIC AGENT.
(a) If an electronic message, record, or performance is received by a party, as between the parties, the message, record, or performance is attributable to the party indicated as the sender if:
(1) it was sent by that party, its agent, or its electronic agent
. . .
(e) An authentication made by an electronic agent constitutes the authentication of a party if the party designed, programmed, or selected the electronic agent for the purpose of achieving results of that type.
13. Prosser and Keeton, pg. 534. RETURN TO TEXT
14. 1868 L.R. 3 H.L. 330. RETURN TO TEXT
15. 1866, L.R. 1 Ex. 265, 279-80. RETURN TO TEXT
16. 1868, L.R. 3 H.L. 330, 338. RETURN TO TEXT
17. Prosser and Keeton, pg. 546 (emphasis added). RETURN TO TEXT
18. Restatement of Torts, §520. RETURN TO TEXT
19. Prosser and Keeton, pg.552. RETURN TO TEXT
20. Id. RETURN TO TEXT
21. E.g. Crist v. Civil Air Patrol, 1967, 53 Misc.2d 289, 278 N.Y.2d 430. RETURN TO TEXT
22. A search on 9 May, 1998 for the terms "`grey goo' or `gray goo'" yielded 520 hits on Wired's HotBot search engine and 333 hits on Alta Vista's. RETURN TO TEXT
23. E.g. Winterbottom v. Wright, 1842, 10 M&W 109, 152 Eng.Rep. 402. RETURN TO TEXT
24. MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050 (Judge Cardozo again). RETURN TO TEXT
25. Prosser and Keeton, pg. 685. RETURN TO TEXT
26. U.C.C. §§ 2-314 (implied warranty of merchantability) and 2-315 (implied warranty for a particular purpose). RETURN TO TEXT
27. Mazetti v. Armour & Co., 1913, 135 P. 633. RETURN TO TEXT
28. Prosser and Keeton pgs. 698-702. RETURN TO TEXT
29. For instance, in 1993 (as part of a general "tort reform" trend in the state) Texas adopted a "risk/utility" standard by statute: Designs are considered defective if it can be shown that there was a "safer alternative design", which is defined as one that "in reasonable probability":
(1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and(2) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.
Texas Civil Practice and Remedies Code, §82.004. RETURN TO TEXT
30. Daubert v. Merrel, 509 U.S. 579 (1993); E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex.1995). RETURN TO TEXT