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Top>Opinion>Is the Problem with the Brakes in the Toyota Prius a Defect?


Susumu Hirano

Susumu Hirano [Profile]

Is the Problem with the Brakes in the Toyota Prius a Defect?

Susumu Hirano
Professor of Law (Civil and Cyber Jurisprudence), Faculty of Policy Studies, Chuo University, and Member of the New York State Bar

Defects and a tsunami of lawsuits

Toyota Motors insists that their recall of the Prius is not the result of any defect, but rather that they are taking the measure as a precaution. Though I cannot know their true intentions, judging solely based on reports in the media, Toyota initially suggested that the brakes on the hybrid car merely gave drivers a bit of a strange feeling. In the automotive industry troubles in automobiles have traditionally been called problems. As they vary not only in the degree of troubles, but also in frequency, problems are not always regarded as defects. That being the case, however, the question is what kinds of automotive problems should be regarded as defects?

In the United States, the problems with the brakes on the Prius are causing great concern, as evidenced by the National Highway Traffic and Safety Administration (NHTSA) being inundated with complaints, for example. One new issue that the U.S. media have taken up is the increase in product-liability lawsuits. A recall can be regarded as an open and public confession by manufacturers themselves about the problems with their products. It is therefore a matter of course that recalls are followed by increases in lawsuits, as I have seen first hand through my own experience with the law. If it is found that a manufacturer has intentionally delayed a recall while they are aware of a potentially dangerous problem, that manufacturer could be liable for enormous amounts of punitive damages. The hardships that Toyota faces go beyond the massive cost of the current recall and the concomitant loss of credibility-or reputational risk-they will also be deluged by a tsunami of lawsuits surging toward them after the earthquake of the recall.

Defects and malfunctions

In American products liability, which is the most advanced in the world, is said that a defect is almost always inferred if a product shows a malfunction. In legal terms, a malfunction is defined as product behavior that is clearly different from the intended operation. A typical instantiation of malfunction, for example, would be if a new television suddenly caught fire and burned users who had not misused the equipment. This would constitute a malfunction because the intended function of a television is obviously to display images and produce sound, without igniting.

Under these terms, does the odd feeling of the brakes mentioned above constitute a malfunction? We must not rush to judgment, because we do not have enough factual information to draw a conclusion yet. We can, however, readily expect that Toyota will have a hard time on the defense during the lawsuits, for indispensable functions-i.e., intended functions-including the running, turning, and stopping of the vehicles. These three functions are not only the most fundamental elements of a vehicle as a product, but they are also directly linked to safety. If it is found that the stopping function is extremely unreliable, it would be highly likely to be inferred that the malfunction is a defect.

Hybrid cars and ABS brakes-the high risk of emerging technologies

The media also reported that the strange feeling of the brakes was caused by emerging technologies employed in the automobiles. This strange feeling reportedly resulted from a hybrid combination of regenerative brakes, which can store electricity generated from the braking force, and traditional hydraulic brakes in the Anti-Lock Braking System (ABS), a braking system to prevent skidding. This implies that the brand-new hybrid products might not have the traditional feeling to which drivers are accustomed.

In industries related to mechanical products, it is commonly known that the less acquainted people are with a new technology, the more risky-and less reliable-the technology is. Let us reflect, for example, on the old-style Russian rocket Soyuz, which transported the astronaut Souichi Noguchi to the International Space Station. Many of you might have worried whether it is safe to use the same technology today that was used in the Apollo program in the 1960s and 70s. In the field of aerospace engineering, however, the facts can be counterintuitive: for instance, the world's first practical jet passenger plane, called the Comet, had numerous accidents after its brilliant debut. In fact, it took a long time to find that the cause was metal fatigue. Moreover, recent well-known cases include a passenger aircraft that boasted a leading-edge system for automatic computational control which suffered many accidents as a result of pilots' operational feeling not having fully adjusted to it. This means that the aging Soyuz, which can fly with kerosene, is much safer and securer in some respects than the Space Shuttle-equipped with all the latest technology, and whose tiles were never expected to drop off and make a hole in its wing.

If the Prius had not incorporated the regeneration brakes, ABS, and other emerging and advanced technologies, the strange feeling in the brakes would never have occurred. However, if new automobiles only used hydraulic brakes as traditional gasoline-engine-driven automobiles do, fossil fuel consumption would proceed, resulting in more pollution of the global environment, while sudden braking would remain ineffective on wet road surfaces. We should not discourage the attempts and the bravery of taking risks in order to introduce new and advanced technologies.

I have the opportunity to help develop and apply practical uses for lifestyle assisting robots-for nursing, housekeeping and other household activities-by participating in various study groups regarding legal systems for the safety of these robots at the Ministry of Economy, Trade and Industry. I have learned through them that what engineers are most concerned about is the potential discouragement of selecting new technologies like the robots. Illogical and shortsighted criticism or disincentives would ultimately hinder the improvement of our national well-being.

In the first place, products can never be perfectly safe. For example, the knife is a product that is useful precisely because it cuts. The benefits and risks of cutting are intertwined and cannot be severed. And the situation is more complicated for automobiles, which are more advanced products than knives. Excessive safety in automobile would make it more difficult to use. It would also contaminate the global environment and increase costs. While consumers say that they regard safety as the most important factor, they do not in fact purchase cars that are too expensive or too difficult to use. Safety is not actually the only thing that consumers expect. Therefore, determination as to whether a problem is a defect should be, in principle, a process of comprehensive examination which considers the trade-off involving elements including safety, price, usefulness, and benefit. This process must aim at balanced and optimal safety.

Susumu Hirano
Professor of Law (Civil and Cyberspace Jurisprudence), Faculty of Policy Studies, Chuo University, and Member of the New York State Bar
Professor Hirano was born in 1961 in Tokyo. He graduated from the Department of Law at the Faculty of Law in Chuo University in 1984. He received a Master's Degree in Law from Cornell University in 1990. Prof. Hirano has been a member of the New York State Bar since 1991. He received a Doctoral Degree in Policy Studies from Chuo University in 2007. Professor Hirano assumed his current position in 2004 after working for law firms and serving as General Counsel at Legal Department, NTT DoCoMo, Inc. He has been a member of various organizations including the Robot Policy Committee at the Ministry of Economy, Trade and Industry, and is currently a member of the Working Group for Internet Content in Violation of Copyrights at the Cabinet Secretariat. Professor Hirano's publications include Hyper-Litigious Society [Chou-Soshou Shakai] (Business-sha, 2008); A Systematic Guide to American Contract Law [Taikei Amerika Keiyaku-hou] (Chuo University Press, 2009); and E-Commerce and Cyber Law [Denshi-Shoutorihiki to Saiba-hou] (NTT Publishing, 1999).

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