Monday, May 13, 2013

Another First: the duty of care under TJ Hooper requires the drone to trump the operator: Police Drone Crashes into Police


$300,000 Texas Police Drone Crashes

Sam Biddle reports at Gizmodo of this slapstick man bits dog episode; mercifully, no one was hurt.

Not only did the drone fail, and not only did it crash, it literally crashed into the police. It's no wonder we're not able to find a video of this spectacular publicity failure. Luckily, the SWAT boys were safe in their Bearcat.

The T.J. Hooper: When does the law require adoption of new technology?

Sam didn’t realize that he was onto a bigger story but Sam probably didn’t take Torts where he would have learned of events about the The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932). See generally, Richard A. Epstein, The Path to The T.J. Hooper: The Theory and History of Custom in Tort Law; Prosser, Torts § 33, at 194–95 (5th ed. 1984).

Sam had the facts before him, but lacked a legal context for their historic first significance.

[The] prototype drone was flying about 18-feet off the ground when it lost contact with the controller's console on the ground. It's designed to go into an auto shutdown mode...but when it was coming down the drone crashed into the SWAT team's armored vehicle.

What is the liability of the software engineer for the drone?

We have written about this question, before.

Auto shutdown mode is a euphemism that the software and other engineers who designed the  Vanguard Drone had—applying their covenant not to be negligent, arising under T.J.Hooper—designed the drone such that is programing overrode human control.

The T.J. Hooper court was asked, whether an owner has to adopt new technology—radio receiving sets—which were then still at least “partly a toy.” 60 F.3d at 739. L. Hand answered, “Yes.” Hand wrote:

Is it then a final answer that the business had not yet generally adopted receiving sets? There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. … 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 never may 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 their omission.… But here there was no custom at all as to receiving sets; some had them, some did not; the most that can be urged 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. The statute (section 484, title 46, U. S. Code [46 USCA § 484]) does not bear on this situation at all. It prescribes not a receiving, but a transmitting set, and for a very different purpose; to call for help, not to get news. We hold the tugs therefore because had they been properly equipped, they would have got the Arlington reports. The injury was a direct consequence of this unseaworthiness.

Eptein writes that this “language [was] more eloquent and forceful than anyone else, either before or since, has put it.”

No more human operators.

The careful thinker by this point should realize that we have arrived at a Rubicon in the law. Yesterday, man controlled the machine. Tomorrow, the machine will control the machine.