Abstract

     This is not a tale of robots gone wild or other stuff of science fiction. Rather, this is about real-life situations that have occurred or are likely to occur. It is about software failure when that failure leads, not to system crashes or botched tax  returns, but to serious physical injury to persons. The power of software can be seen everywhere: It flies airplanes, monitors medical  patients and nuclear power plants, and even helps us drive our cars. Indeed, software is no longer confined to the domain of business systems that control inventory, issue payroll checks, and keep track of accounts receivable and payable. It extends beyond the desktop computer with its word processing and data management capabilities and now routinely interfaces with human beings in their daily lives and in unseen ways. The consequence, however, is that some software can cause physical injury if it is defective. While many early commentators have speculated about the liability regime when such a condition occurs, it is now time to take stock of how the law is developing and should develop when software foreseeably causes physical injury.
     The discussion is timely for a number of reasons. First, there have been sufficient numbers of instances of software failure that have caused physical injury to cause serious concern, and the number can only grow, given the pervasiveness of software in our daily lives. Second, the software industry is no longer in its infancy. Its development has moved out of garages and into corporate offices. It has matured to become a dominant sector of the economy. Consequently, it is appropriate to consider liability for defective software in the same light as liability for defective automobiles, pharmaceuticals, and other products.
     This article will first examine the characteristics of software and its evolutionary creep into our lives in Part II. In Parts III and IV, we will review the literature about software litigation and the eras through which it has progressed. Part V reviews the origins of strict product liability and the policies underlying it to determine whether software, which has hitherto enjoyed immunity from strict liability, fits into the strict liability context. Lastly, in Part VI we argue for the adoption of a strict liability regime for software failure that produces physical injury and offer supporting arguments for why such a move is both necessary and sensible.