When Cars Can Fly:
Automotive Product Liability Law in the
Age of the Highway in the Sky


Ryan A. McCarthy
Student ID 204542
Legal Issues of the 21st Century
Professor David Friedman
Spring 2004


For the past year, I have been working for a law firm that specializes in automotive product liability defense. Our clients include the biggest car manufacturers in the world - General Motors, Ford, Toyota, Honda, etc. In many of the cases I have worked on, the plaintiff was involved in an accident - which may even have been his fault - and he hires an attorney who files suit against the “deep-pocket” manufacturer alleging multiple defects in design and/or manufacture. Then, over the course of the next several months or years, the plaintiff’s counsel will use and sometimes abuse the discovery process in order to discover the factual and evidentiary basis to his client’s claims. In the end, the case might settle, it might go to trial, it might even get to a verdict. While most of the work I do as a law clerk is in dealing with the plethora of discovery motions and disputes, underlying it all is the well-developed law of products liability.

When I was in grade school, I would wake up in the morning and eat my Wheaties while watching the Jetsons buzz around in their flying cars. George Jetson’s car was always breaking down - sometimes mid-flight. Recalling that classic cartoon, and considering my current and future employment in defending automobile manufacturers, has prompted me to select as the subject of this paper the exploration of whether current product liability law, as well as other tort principles, will remain fair and viable when and if my firm’s clients start building flying cars.


It seems that most movies and fictional books depicting the future have us all driving flying cars. It’s what we expect to happen; we’ve progressed from foot to horses to vehicles, and the next step for individual travel might very well be flying vehicles - tantamount to everyone flying his or her own helicopter in some organized chaos in the skies. Although the reality of “skyways” is probably still decades or more in the future, the flying car itself is available for purchase today.

Paul Moller and Moller International is credited with inventing the “skycar” that is, in effect, a flying car. Instead of the S.U.V. we are accustomed to seeing on the roads today, the flying car is referred to as a V.T.O.L. - a vertical take off and landing vehicle. The M400 is touted as being “a new type of aircraft that combines the performance of airplanes and the VTOL capability of helicopters in a single vehicle without the limitations of either.” Moller, who lives in Davis, California, describes the way the VTOL functions as follows:

Using a principle similar to that of the British Harrier jump jet, the Moller Skycar volantor incorporates a patented thrust deflection vane system that redirects thrust, enabling it to hover or to takeoff and land vertically from
almost any surface. This capability plus the added safety of ducted fans makes it ideal for a wide variety of commercial and military applications.

Further, Moller suggests, as possible uses for the Skycar “private and charter air travel, express delivery, news gathering, border patrol, police and fire work, and search and rescue, to name just a few.” Here is a picture of the M400:

There are, of course, drawbacks to this early offering of a flying car. The first, and most obvious, is the price. The M400s sell for one million dollars each, unless the purchaser is buying in bulk, in which case the price is reduced. The Skycar also uses regular gasoline, but only gets 28mpg - which is not too bad, however, with a maximum range of 900 miles, it would cost quite a bit to fill up the tank. Finally, considering the fact that the Skycar’s top speed is 380mph (at 20,000ft) the driver must be very well trained and certified before taking the stick. Certainly, no one, including Moller, envisions there being much Skycar traffic in the skies anytime soon.


The law of products liability has had a somewhat convoluted and confusing past, and many courts even today are still confused about what law to apply, and who is to apply it - the judge or the jury. Generally, there are two areas of products liability law - the first is where the plaintiff is claiming a manufacturing defect, and the second is where plaintiff has claimed a design defect. The following sections will discuss the current state of product liability law to provide a foundation for discussion in later sections regarding how product liability as we know it today might play out when cars can fly.

A. Manufacturing defects

Where the consumer is alleging that a product was defectively manufactured, essentially, he is claiming that the product came off the assembly line in a condition that was not intended by the manufacturer - an aberration. In these cases, the courts have held that the manufacturer will be held strictly liable. In other words, if the plaintiff can prove that there was a defect, and that the defect was the cause of some damages suffered or incurred by plaintiff, then the manufacturer will have to pay - regardless of whether the manufacturer was negligent or in any other way culpable. The courts have reached this conclusion based largely on policy considerations, the most salient of which is that, as between the manufacturer and the consumer, the manufacturer is in a much better position to protect against any danger that might be caused by its product than is the consumer - who may be completely ignorant of the overt or latent defect until it is too late (i.e. until after an accident has occurred).

B. Design defects

Generally, under particular circumstances, one of two tests will apply when a consumer is alleging that a product is defective in design. These two tests are essentially derived from the Restatement, and are a product of the determination of the courts as to the most appropriate factors to consider, and how much of a burden should be placed on the plaintiff. Before discussing the two tests - the consumer expectations and the risk-utility tests - the analysis should begin by considering the wording of the Restatement.

1. Restatement 402A

Many states have adopted the Restatement’s vision of products liability law pertaining to design defects, while others have made adaptations to the test to fit what that state’s legislature perhaps envisions for the policy of the state with regard to defects (i.e. pro-consumer versus pro-manufacturer). The following is the test from the Restatement 402A:

(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 in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

This rule represents the policy decisions that the manufacturer is better able to foresee some hazards and to guard against those hazards causing damage or injury; the manufacture can also insure against the risk of injury and transfer the cost of risk avoidance to the wider consumer base; and finally, given the nature of the present-day manufacturing industry, with all the component parts manufacturers, the chain of distribution, etc., it makes sense to let the consumer sue the manufacturer and let it seek indemnification from all others responsible.

2. Consumer expectations test

Under Soule, application of the consumer expectations test is limited to cases where there was such obviously aberrational safety performance - as measured against the ordinary user’s experience-based safety expectations - as to warrant a “res ipsa loquitor-like” inference of defect. The Soule court suggested that a possible scenario in which this test would be appropriate would be where a vehicle explodes while idling at a stoplight. Clearly, ordinary consumers reasonably do not expect such an event to occur. Similarly, if a car was to roll over and catch fire after being rear-ended at 2mph, the consumer expectations test would be applicable as the ordinary consumer would not reasonably anticipate a rollover event to occur without some dramatic and violent accident as the cause. The court concluded that “[i]f the plaintiff in a product liability action proved that a vehicle’s design produced such a result, the jury could find forthwith that the car failed to perform as safely as its ordinary consumers would expect, and was therefore defective.”

The consumer expectations test does not permit use of an expert because his or her testimony would necessarily be directed at answering the question of what would an “ordinary consumer” expect with regard to performance of the product in question. It would be reasonable to assume that the jury is comprised of people who think themselves “ordinary consumers” and therefore they do not require an expert to tell them what they ought to think about a product’s performance. Granted, there are many cases in which the “ordinary consumer” at issue would be the consumer of some product most people in the community do not purchase - such as computer chips, tractors, or microscopes. In those cases, testimony of an expert is still unnecessary as the jury can merely hear from the parties themselves as to how the parties themselves expected the particular product to perform. The jury can then weigh the facts and the testimony and decide on its own whether the product was defective under the consumer expectations test.

3. Risk-utility test

Under the risk-utility test, the product is defective as designed only where the magnitude of the hazards outweigh the individual utility or broader societal benefits of the product. Essentially, the goal is that only reasonably safe products are marketed to the public, and as this test is employed, reasonably safe is defined as products whose utility outweighs its inherent risks. The manufacturer has a duty, however, to take steps to reduce the risk to the greatest extent possible while maintaining the product’s integrity and utility.

This test is employed where the analysis of the alleged defect is beyond what a lay person could derive from what happened - in other words, the use of an expert is required to explain what the defect is and also to help illustrate how the manufacturer would have gone through a risks versus utilities analysis in coming up with the product’s design. As the court in Soule stated, “when the issue of design defect calls for a careful assessment of feasibility, practicality, risk and benefit, the case should not be resolved simply on the basis of ordinary consumer expectations...”

There are several factors that are to be considered when determining whether a product is defective under this test:

the utility of the product to the public as a whole and to the individual user
the nature of the product - that is, the likelihood that it will cause injury
the availability of a safer design
the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced
the ability of the plaintiff to have avoided injury by careful use of the product
the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff
the manufacturer’s ability to spread any cost related to improving the safety of the design

4. The Barker test

In 1978, the California Supreme Court decided the case of Barker v. Lull Engineering which attempted to make one simple test out of the three approaches discussed above. The court in Soule stated the rule, as modified by that court, which provided a process whereby the

trial judge instruct[s] the jury that a product is defective in design (1) if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if the plaintiff proves that the product’s design proximately caused his injury and the defendant fails to prove...that on balance the benefits of the challenged design outweighed the risk of danger inherent in such a design.

Although the Barker formulation leaves open the possibility of using either the consumer expectations test or the risk-utility test, the court in Soule v. General Motors Corp. later clarified that juries should only be permitted to place exclusive reliance on the consumer expectation test where “everyday experience of the product’s users permit’s a conclusion that the product’s design violated minimum safety assumption.” Further, as was stated in the discussion regarding the risk-utility test, experts may be utilized to aid in the jury’s understanding of the calculus employed by the manufacturer in coming up with the ultimate design. Finally, the Barker ruling makes clear that the plaintiff will bear the burden of production and persuasion should he or she choose to argue that the ordinary consumer would not expect to encounter the defect present in the subject vehicle - whereas, under the risk utility test, the manufacturer bears the burden.

5. Unreasonably dangerous (or unavoidably unsafe) products

Finally, given the topic selected for this paper, it might be useful to note what the drafters of the Restatement had to say about products that are characterized as “unreasonably dangerous.“ Comment k to Restatement 402A provides the institute’s analysis of those products which cannot be made safe, and thus, their manufacturers are not subject to strict liability.

There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs...The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

As is noted in the comment, claims related to “unreasonably dangerous” products most commonly arise from some alleged defect in prescription medication or other drugs. Medication is thought to do more good than harm, and so long as the manufacturer has been diligent in observing the industry-recognized standards of due care, then the manufacturer should not be held liable when a particular plaintiffs suffers adverse effects as a result of ingesting such medication. To permit strict liability recovery in such cases would operate to discourage manufacturers from distributing drugs that can help a significant number of people for fear that somewhere, someone will be harmed by the drug and the manufacturer’s exposure will reach into the millions or higher.


Courts have consistently held that “manufacturers are not insurers of their products; they are liable in tort only when ‘defects’ in their products cause injury.” When cars can fly, virtually anything that goes wrong with the car can potentially cause disaster to the occupants. Take for instance, the possibility of a mid-air fender-bender that causes a short-circuit in one or both of the cars. If all power is cut to the mechanisms which are allowing the vehicle to defeat gravity, gravity will win, and the car will come falling back down to Earth and, presumably, everyone will die.

There are several questions that need be answered with respect to product liability litigation in the age of flying cars. The first is whether strict liability should still apply where the manufacturer has defectively designed a flying car. If strict liability remains the law of the land, then how should we determine whether there is a defect - is the consumer expectations test still valid, or is the risk-utility formula preferable, or some other option? If strict liability is not the appropriate standard, then is the classic negligence formulation the better approach? If so, how are the rules regarding duty, breach, causation and damages going to differ, if at all, from how we know them today? Finally, should injured plaintiffs or the estates of deceased drivers of flying cars be permitted to sue the manufacturer at all, or have they assumed the risk of dying by flying in the first place?

A. Stick with strict liability?

In the progression of product liability law, the courts eventually realized that the plaintiff/consumer should not be precluded from recovery by way of a requirement of proving knowledge, or scienter, on the part of a manufacturer with respect to a defect in the design of a vehicle or other product. Manufacturers stand to profit tremendously by placing a product on the market, and should therefore also run the risk of liability, and high exposure, if the product they make available to the public is defective in design or manufacture. The fact that the plaintiff need not prove knowledge or intent is supposed to act as a strong motivating factor for manufacturers to make sure that they do all that they can do to ensure that the product they sell is as safe as is reasonable.

Clearly, whatever standard is adopted for evaluating a plaintiff’s claims, it is not in the public interest to relieve manufacturers of their continuing obligation to strive for perfection in what they produce. Strict liability is as strong a motivator as civil law affords under these circumstances, short of instituting a negligence per se standard - whereby a manufacturer would be liable for negligence merely by virtue of a statutory violation - or a straight res ipsa loquitur standard, which would hold the manufacturer liable based on the fact that an accident happened, and it would shift the burden of coming forward with exculpatory evidence to the manufacturer.

What perhaps makes a big difference in how this question is answered is whether a human is operating the flying car or whether it is auto-piloted. In many cases handled by the firm I work for, the manufacturer’s position is that the plaintiff could have done something differently to avoid the accident - in other words, the defense is driver error. However, with auto-pilot, driver error is impossible. Moller International has indicated that, generally speaking, for the time being the Skycar remains in mid-air by virtue of the technology - in other words, the human driver need not worry about keeping the Skycar above ground and horizontal to the ground. The human driver does, however, steer the Skycar. Moller states, though, that when and if we have a Jetsons-like highway in the sky, the flying cars will all operate according on their own. The driver will get in and can watch TV or read a book while commuting. Meanwhile a GPS-type system will place the flying car in the flow of traffic and get the human to his destination without incident.

If this is the system in which the flying car operates, then for there to be an accident, one of only a couple circumstances must be present: 1) there must be a defect of some sort with the vehicle, 2) there might be a problem with the GPS system such that it erroneously causes two flying cars to collide or one car to collide with a fixed structure, or 3) there is some natural phenomena that disrupts either the vehicle’s operations or the GPS operations (such as a bird being sucked into the engine, or a flash of lightning taking out a receiver on the car). If these are the only causes of an accident, and no others come to mind, then it makes sense to retain the strict liability model for product liability law. In each instance, the risk of loss or liability is properly placed at the doorstep of the manufacturer, and if there was some issue with the GPS system, then the manufacturer can implead the operator of the GPS system - be it governmental or private. Essentially, if all the plaintiff did was open the door, step into the vehicle, tell the vehicle where he wanted to go, he placed his life in the hands of the manufacturer and the operator/administrator of the GPS system.

However, this does not end the inquiry. If it is agreed that strict liability is the preferable approach, plaintiffs must still prove that there was a defect, and that the plaintiff suffered recoverable damages (causation is likely to be easily established). Thus, we must consider whether the consumer expectation test, or the risk-utility test, or some other test should be applicable.

B. How to determine whether there is a defect

Modern vehicle manufacturers work tirelessly to continuously improve upon their designs and make their vehicles safer, more economical, more efficient, and more attractive to the potential purchaser. Manufacturers conduct multiple crash tests, rollover tests, drop tests, crush tests, etc. - test after test, to “cover their bases” and so, when a person is eventually injured in a car accident, the manufacturer can say that they did all they could do to prevent the injury from happening.

Most often, the test that is applied by the courts in cases involving violent car accidents is the risk-utility test. As was stated above, the consumer expectations test is reserved for rare cases wherein the facts of the case are so clear that a lay person can determine on his own whether he would reasonably expect to see happen to a car what happened to the plaintiff’s car in the case he is deciding. Under the risk-utility test, the car manufacturer to bring in an expert to testify regarding the ins-and-outs of the accident, such as an accident reconstructionist and a bio-mechanical engineer.

However, remembering the factors considered by the court when applying the risk-utility test, listed on page six, it seems that the test may not prove too useful when cars can fly. For instance, when looking at the nature of the product and the likelihood that it will cause injury, it is clear to see that although the flying car sitting in your garage poses no threat, once you use the car for its intended purpose it becomes a huge threat - particularly if it contains a defect in design or manufacture. Arguably, the same can be said of a motor vehicle, however, even where something goes horribly wrong in a motor vehicle, people can and do make it out alive. Most likely, that would not be the case if a car fell from the sky.

Another factor that does not seem to be of much probative value is looking at whether the plaintiff could have avoided the injury. Again, assuming that the cars are part of a GPS system, the driver would not be able to intervene and cause or contribute to an accident. There could be instances, however, where the owner fails to maintain his flying car, and in those instances the manufacturer would attempt to apportion some of the fault to the driver. However, proof is likely to be lacking and if “failure to maintain” becomes an affirmative defense, the manufacturer would be hard-pressed to meet its burden of production.

Instead, if the risk-utility test is to be applied, the more salient factors considered would be those that look at what the manufacturer did or did not do. For instance, one of the factors asks whether there a safer design available, another asks whether the product could have been designed safer while maintaining its functional and economical selling points. These factors and others focus the attention of the trial court on the manufacturer, and specifically, on safety features that the manufacturer could have, and perhaps should have, implemented on the vehicle.

With mid-air vehicular problems, be they caused by natural phenomena or by some defect, the issues at trial are not likely to be as focused on the intricacies of the violent rollover incident as they are with ground vehicles. Accident reconstruction experts typically analyze all the marks on the vehicle to determine, for instance, what caused the driver to lose control, how many times did the car roll, when did the roof collapse, where did the suspension system break, etc. Accident reconstruction experts are not likely to serve much of a purpose in litigation over flying cars - the person will be dead because the car fell from 10,000 feet in the air to the ground. Instead, the experts will likely focus on a couple other key factors: 1) whether the flying car’s design made the car particularly vulnerable to falling from the sky upon the happening of a minor glitch in the system, and 2) whether the manufacturer incorporated as many safety measures as was practicable and known in the industry.

It seems industry custom is going to set a great deal of the standards (as is the case in many instances), however, there may be a significant number of years, and a significant number of tragedies before the industry has figured out what its customs are. We have seen the evolution of standards happen with cars - though we did have to experience such debacles as the Ford Pinto - in which Ford executives made a calculated decision against recalling the Pinto despite information that minor rear-end collisions tended to cause the gas tank to erupt into flames and kill the occupants, because, apparently, it was cheaper to settle the potential lawsuits than it would be to stage a recall campaign.

If, in the age of the flying car, the legislature and the courts wish to continue the policy of holding the manufacturer strictly liable upon showing of a defect because that is the most efficient and effective means to motivating the manufacturers to produce quality products, then it seems that there should be no reason to stray from the rules that we have in place now. The defense attorney bar, and the manufacturers, will likely be up in arms because there does not appear to be a very good likelihood that they will be able to defend lawsuits in which something - anything - happens to the flying car which sends it to earth, killing its occupants. This matter will be discussed further towards the end of the paper.

C. Is the classic negligence standard the better approach?

Assuming, for the moment, that the legislature and the courts have concluded that the result of keeping with the strict liability system places too much of a burden and a risk of exposure on the manufacturers, would any good come from simply applying ordinary tort negligence principles - duty, breach, causation and damages?

1. Duty of care/breach

For flying cars to come into vogue, their manufacturers will have to come up with ways to make flying in a car a safe alternative to just staying on the ground. Although residents of Los Angeles might jump at the chance to cut their commute time down to minutes, rather than hours, reluctance will kick in if there’s a near 100 percent chance of fatality should anything go wrong mid-air.

As was mentioned above, I work for a law firm that represents automobile manufacturers in product liability lawsuits. In many cases, the plaintiff is suing - or if the driver died in the accident, his or her family - because it is believed that if the manufacturer had done something more, something different, the catastrophic injury or death would not have happened. Much of the litigation focuses on the strength of the roof structure in a given vehicle. In a good number of serious accidents, cars roll over. If the roof is not strong enough, it may crush, thus decreasing the so-called “occupant safety zone” and then the occupant may suffer injury to his spinal cord when his head hits the roof. Consequently, during the years of discovery, there is battle after battle over documents which may or may not evidence the manufacturer’s knowledge of the integrity of the roof structure under laboratory testing scenarios.

Clearly then, if there are to be lawsuits against manufacturers of flying cars, the manufacturers will be paying keen attention to what safety measures can be installed into the vehicle. General Motors and Ford are concerned with how to make a roof stronger since a roll over is just about the most violent type of accident one might experience in an automobile. However, manufacturers of flying cars are not likely to be concerned with roof integrity; if something goes wrong at 10,000ft, roof strength is not going to matter. Instead, the manufacturers will likely focus their research and attention to not only ways to prevent mid-air problems, but also systems that can be installed in a flying car that are intended to save the occupant’s life. When a pilot realizes his plane is going down, he does not ride it into the ground - he ejects. The same sort of thing is likely to be considered by manufacturers of the flying car.

In fact, Moller International’s website details the safety measures installed in its Skycar. Here is a list of these measures:

Dual Engines -- In the unlikely event of an engine failure sufficient power remains to ensure a safe and comfortable landing. Since the M400 has eight engines, one or more can fail and the Skycar will still operate safely. Unlike any light helicopter or airplane, the M400 Skycar has four engine nacelles; each with two Rotapower engines. These computer-controlled engines operate independently and allow for a vertical controlled landing should one engine fail.

Redundant Computer Stabilization Systems -- The Skycar has redundant, independent computer systems for flight management, stability and control. Should a computer problem occur backup systems would take over seamlessly. M400 has three independent computers for flight management with only one needed to fly.

Redundant Fuel Monitoring -- Multiple systems check fuel for quality and quantity and provide appropriate warnings.

Aerodynamically Stable -- In the unlikely event that insufficient power is available to hover, the Skycar's aerodynamic stability and good glide slope allows the pilot to maneuver to a safe area before using the airframe parachutes.

Automated Stabilization -- Since computers control the Skycar flight during hover and transition, the only pilot input is speed and direction. Undesirable movement of the Skycar due to wind gusts is automatically prevented.

Inherent Simplicity of the Engines -- Rotary engines have very few moving parts and therefore require very little maintenance and have little opportunity for breakdown and wear.

Enclosed Fans -- Each nacelle fully encloses the engines and fans, greatly reducing the possibility of injury to individuals near the aircraft. The volantor's VTOL lift is obtained via airflow through the four ducted fan propulsion nacelles which is redirected downward by deflection vanes during vertical takeoff.

Dual Parachutes -- Even in the instance of complete power loss you and your passengers are protected. The two airframe parachutes, front and rear, will guide the volantor safely and comfortably to the ground without incidence and can be deployed in the event of a critical failure of the aircraft. With the parachutes, the pilot, passengers and the Skycar can be recovered safely. Parachutes developed for the ultra-light aircraft industry, that are ballistically ejected, have demonstrated reliable vehicle recovery above 150 feet. Recovery is possible at a much lower altitude if the aircraft has a modest forward velocity or if a spreader gun is used to spread the parachute canopy. The best primary system should use the minimum number of engines necessary together with sufficient power to hover after the failure of one engine. A multi-engine system also interfaces well with a back-up parachute system since the time between consecutive engine failures should allow sufficient opportunity for the parachute to be deployed. A single engine failure in a VTOL aircraft with eight independent ducts and one engine per duct would require 54% reserve power in order to continue to hover. The same number of engines arranged in four nacelles with two engines per nacelle requires 36% reserve power to accommodate an engine failure. The safe operation of a VTOL aircraft requires that during hover it operate as close to the ground as possible (<25 ft.) and that transition to forward flight occur as quickly as possible. With the loss of an engine at 25-ft altitude the vehicle could be landed very quickly without incident. Above 25 ft altitude one can assume that the vehicle is moving forward and generating some aerodynamic lift so that a second engine failure should not be as critical. In the case where a critical number of engines fail and transition is not complete, aerodynamic lift can extend the flight time in the critical period before the parachute is fully deployed. Thus, deployment could occur at relatively low altitudes (<25 ft.) particularly if a spreader gun is used. In any case, a new concept aircraft can be expected to undergo the unexpected. Thus, overlapping systems to ensure passenger safety would be appropriate and should be mandatory.

Emergency options -- The Skycar can land almost anywhere, and therefore avoid dangerous situations created by a sudden weather change or equipment failure.

Although Moller International appears to be a pioneer in the industry, clearly, it has done its research. In the years to come, when other manufacturers emerge, it is likely that their models of flying cars will be evaluated based on whether they have incorporated these or other safety measures. If other, better measures are incorporated into the other flying cars, then the industry will look back to Moller to see if it will update its designs to reflect the progress in technology and understanding of the risks of driving in the sky.

Certainly, this concept is nothing new - the cycle occurs with every new product where several competitors emerge to fight for the consumer buck. That practice of competition has the consumer-friendly effect of not only lowering prices, normally, but also generating better products - in design and in safety. Nowhere will safety be a higher selling point than with the flying cars.

The concept of negligence per se was mentioned earlier as representing a step beyond strict liability in favor of the plaintiff/consumer. Currently, the National Highway Transportation Safety Administration (NHTSA - commonly referred to as “nitsa”) has promulgated the Federal Motor Vehicle Safety Standards (FMVSS) which sets out the minimum safety standards that automobile manufacturers must abide by. Plaintiffs will most often use the discovery process to determine whether their accident vehicle (or the design which gave birth to their vehicle) met or exceeded what is required in the FMVSS. Most of the time, the standards were met and exceeded - at which point plaintiffs will suggest that NHTSA might consider heightening the standards. Certainly, one can imagine a set of guidelines like the FMVSS being created to govern the manufacture of flying cars, and indeed, such a set of rules would have to be implemented if we are ever to see flying cars in mass numbers in the skies. The problem in developing the guidelines, of course, is determining what the guidelines should be when you are dealing with new technology like the flying car. It would be reasonable to assume that much of the guidelines would look like the FMVSS, and much of it would look like the rules governing manufacture of personal aircraft. Consequently, plaintiffs in the future could also rely on the federal government to set standards which would then lay foundation for a negligence per se claim.

What is perhaps the most controversial part of adopting the ordinary negligence schema for product liability lawsuits over flying cars is that if the manufacturer can prove that it adopted all safety measure that the industry has thus far recognized, then it is likely that the manufacturer will be able to bring a motion for summary judgment and get out of the case early - because, as a matter of law, the manufacturer could not have breached its duty to do as much as it could to protect the people who ride in its flying cars. The courtroom will then turn into a forum for debating the merits of whatever safety measures are being implemented in the flying cars, and how those measures are sufficient or insufficient and need updating or modification. This is likely the scenario that the courts wished to avoid by applying strict liability so as to get around the need to discuss whether the manufacturer “did all it could do” to protect the user of its product.

2. Causation

An initial consideration of the causation element leads to the conclusion that it should not be any more difficult for the plaintiff to prove in the case of flying cars as it is in any other type of products case. If plaintiff can show that there was a breach of the manufacturer’s duty to build a safe car for flying, and the manufacturer’s continuing duty to research the newest and most appropriate safety measures, and implement those that are beneficial, then plaintiff has met his or her burden.

The problem comes with actually producing evidence to support this claim. If the flying car dropped 10,000 feet and was obliterated upon contact, both parties are going to be hard-pressed to determine what exactly went wrong and to confirm that the crash was due to the breach of a duty by the manufacturer. In most cases, if the plaintiff fails to come forward with definitive evidence of a defect, the manufacturer will likely prevail. Consequently, flying cars may need to be equipped with a highly sensitive “black box” that could tell the parties why the car fell from the sky. Otherwise, it is difficult to imagine how plaintiffs would be able to convince a jury of this element. Even if the manufacturer produced volumes of testing and reports prepared by its engineers which established that the flying car should have been designed differently, that does not lead to the conclusion that the design issue is what caused the accident.

3. Damages

Proving damages has got to be the easiest part of the plaintiff’s case. If the plaintiff has met his burden with respect to the first three elements - duty, breach, and causation - then proving that the extent of the injury should be relatively easy. That is no different than in most cases.

The problem here is the extent of the damages. So long as cars remain on the ground, there can be an accident, and most likely everyone will survive and at worst suffer some bumps, bruises and breaks. If there is a problem in the skies, and the flying car comes crashing down, assuming it was not equipped with appropriate safety measures (i.e. parachutes), the occupants will die. Consequently, with every accident, the manufacturer can be on the hook for extensive damages, such as through a claim for wrongful death.

This concern may be enough to cause the would-be flying car manufacturers from refrain from building the flying cars out of fear of high exposure or because its insurance rates are astronomical. Stunting or halting the progress of technology is certainly not what the courts had in mind when creating the product liability rules. Perhaps the better approach is to levy civil penalties against the manufacturer if it can be shown that the manufacturer neglected to incorporate valuable and effective safety precautions. Civil penalties are likely to be much less than what a deceased’s family could recover for wrongful death, but it would not put the manufacturer out of business while putting the manufacturer on notice of changes that ought to be incorporated.

This discussion transitions into my next and final question.

D. Should plaintiffs even be permitted to sue?

As was alluded to earlier in previous pages, an ultimate question that needs to be answered is whether people injured or killed should be able to sue the manufacturers at all under products liability law.

Arguably, the driver has assumed the risk of crashing whenever he gets in behind the drivers seat of his car - whether the car is on the ground or in the air. Clearly, anything that flies carries the risk of crashing to earth, and usually incidental to that crashing is a great deal of devastation. So, if people drive their cars today, and are assuming the risk that they might end up in a car accident, why should that be different when the person happens to be flying rather than driving? Since the potential damages are so high - due to the fact that if anything goes wrong, the occupants may very well perish - the argument can be made that people should not be permitted to sue the manufacturer just because there is an accident in the sky.

However, this argument does not hold up when the drivers in the sky are not actually controlling the car. In that system, operated as was suggested by a GPS system or some other functional equivalent, there are no accidents besides the interference of natural phenomena like the bird that gets sucked into the engine or the lightning that disrupts the power source and kills the engine. In essence, the person is getting into his own private airliner that was built by someone else, and is being operated by someone else - and all he does is sit passively, reading a book during his commute to work. So, if something goes wrong, there is little chance that it was the fault of the commuter. Rather it is the fault of the manufacturer and/or the GPS operator. Despite the obviousness of the danger of flying, it can hardly be said that the occupant of a flying car has assumed the risk that the GPS will malfunction, or that there will be a defect in the design and/or manufacture of his flying car, or that the manufacturer will not have incorporated the best and most effective safety precautions to protect the occupant in the event of something going wrong.


The above discussion attempts to highlight the problems that will be faced in the future when people litigate defects in flying cars. A major problem from the plaintiff’s perspective will be proving what the defect was and whether the defect identified actually caused the subject accident. From the manufacturer’s perspective, the main concern will be the extent to which damages could be awarded where the accident - had it happened on the ground - would have been minor, but in the air, leads to tragedy.

Resolution of these points seems to favor maintaining the strict liability standards for product liability law. The burden does properly lie with the manufacturer to come forward with evidence that its design was not defective under either the consumer expectations or the risk-utility tests. Most likely, the risk of litigation and high liability will cause the manufacturer to rise the price of the flying car so as to spread the risk across the market of purchasers. That may be one of the reasons that Moller International’s Skycars are selling for one million dollars each.

Although Moller’s Skycar is available now, even Moller acknowledges that there won’t be “skyways” for many, many years. That gives us time to figure out what approach is best, and if we even want to put people in the sky in their own individual transportation units. It may be too complicated, or it may be that we do not have a choice.