Drivers Slam Tesla For Blaming Sudden Acceleration On Them
By John Kennedy
Law360, New York (April 26, 2017, 3:55 PM EDT)
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Drivers Slam Tesla For Blaming Sudden
Acceleration On Them
By John Kennedy
Law360, New York (April 26, 2017, 3:55 PM EDT) -- A proposed class of drivers claiming
Tesla’s vehicles are susceptible to sudden and unintended acceleration told a California
federal court Monday that the automaker shouldn’t be allowed to scrap about half the lawsuit
by improperly deflecting blame onto the drivers themselves.
Earlier this month, Tesla moved to dismiss 13 of the 27 claims in the first amended
complaint, arguing that each of the alleged incidents stemmed from human error, that it didn’t
need to design a fail-safe car and that the claims deal with a design defect that’s not covered
by warranty. The plaintiffs, led by South Korean actor Ji Chang Son, said Monday that
there’s more at play than just driver error.
“Though Tesla prides itself on innovation, describing itself as a ‘software company as much
as it is a hardware company,’ when confronted with a statistically alarming number of
crashes in which drivers report that without the driver applying the accelerator pedal, the
vehicle accelerated at full power on its own under remarkably consistent circumstances,
Tesla has opted to take a very traditional response to these claims — namely, to blame the
drivers,” the plaintiffs said. “Just as Toyota did before it, Tesla has steadfastly ignored the
overwhelming and mounting statistical evidence that its vehicles suffer from a dangerous
safety defect.”
Son initially brought the suit after he and a passenger were hurt when his Model X SUV
crashed through his garage and into his living room when it unexpectedly accelerated while
he was parking. The other named plaintiffs have made similar claims — that all Model S
sedans and Model X SUVs were defectively designed or that Tesla didn’t develop software
that would eliminate the risk of unintended acceleration, even if caused by human error.
In response to Tesla’s assertion that its data shows the drivers themselves caused the
acceleration, the drivers pointed to a NASA study focusing on reports of similar incidents to
the National Highway Traffic Safety Administration between 2000 and 2010. That study
found that sudden and unintended acceleration occurred in one of every 100,000 vehicles
each year, regardless of the acceleration’s ultimate cause.
In contrast, of the approximately 18,240 Model X SUVs that have been sold in the U.S.
between September 2015 and the end of last year, 13 have been reported to NHTSA or
Tesla as having experienced the issue — an annual rate of 71 incidents per 100,000
vehicles, the drivers said.
Previously, the most significant similar defect litigation in modern history — against Toyota —
involved the alleged defect affecting two in every 100,000 vehicles each year, the plaintiffs
said.
The drivers also argued that the consistency of the circumstances surrounding each incident
is evidence of a common defect.
“The vehicles are uniformly described as experiencing 100 percent full power acceleration,”
the drivers said. “If, as Tesla suggests in its motion, each and every one of these reported
instances of [sudden acceleration] were the result of driver error in misapplying the
accelerator pedal instead of the brake pedal, one would expect the driving circumstances in
which these [acceleration] events happen to vary along with the many different
circumstances in which people drive generally.”
Each of the 29 events listed in Monday’s filing occurred at slow speeds, usually while
stopping or starting at a traffic signal, or while parking. Seven of them reported “100 percent”
acceleration, five gave some variation of “maximum acceleration,” and three said they
“surged forward very fast.” Other reported acceleration rates included 98 percent, 97
percent, 84 percent, “on its own,” at a “high speed,” “without warning” and “while pressing the
brake pedal.”
Because of the slow speeds, there’s been no serious injury or death yet connected to the
alleged defect, but the drivers said that it’s “only a matter of time” before someone’s standing
in the path of a suddenly accelerating vehicle.
As for Tesla’s argument that it couldn’t have breached a warranty because its warranty only
covers material and workmanship defects, not design defects, the drivers said that their
complaint includes numerous allegations of manufacturing and material problems. They also
said that Tesla’s advertisements promising safety created other warranties that separately
cover design defects.
Tesla is also trying to get rid of Ohio and Georgia state law claims, but the drivers said
Monday that they’ve met all the pleading requirements for those allegations. One named
plaintiff, however, acknowledged that he doesn’t have standing to sue under one Ohio law
and didn’t oppose its dismissal.
The automaker could not be reached for comment Wednesday.
The drivers are represented by Richard D. McCune and David C. Wright of McCune Wright
Arevalo LLP and Benedict O. Kwon and Stephen L. Ram of Stradling Yocca Carlson &
Rauth PC.
Tesla is represented by Penelope A. Preovolos, Daniel James Wilson and Kimberly R.
Gosling of Morrison & Foerster LLP and by Sean Gates of Caris Lex PC.
The case is Ji Chang Son, et al., v. Tesla Motors Inc., case number 8:16-cv-02282, in the
U.S. District Court for the Central District of California.
--Editing by Rebecca Flanagan.
© 2017, Portfolio Media, Inc.
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