Listen to this post

“With great power comes great responsibility,” and in the rapidly evolving landscape of Artificial Intelligence (“AI”), the intersection of innovation and legal responsibility is becoming increasingly complex. As AI becomes more integrated into products and services across industries, matters regarding liability, regulation, and safety are raising questions about the tension between AI and liability. Courts must apply existing legal frameworks to this emerging technology while lawmakers play catch up and enact guardrails to ensure its safe and lawful use. This article explores the implications of AI in the context of product liability, focusing on recent litigation and potential theories of liability that companies must navigate as AI continues to permeate every sector of the economy.

The ‘Black Box’ Problem: What Makes AI Unique in Product Liability?

Like an airplane’s black box data which is typically undecipherable to non-experts, AI systems, particularly those powered by machine learning, are often described as “black boxes.” Unlike traditional products where design and functionality are relatively static and transparent, AI systems are dynamic and self-evolving. They learn and adapt based on vast datasets, making their decision-making processes opaque, even to their creators. AI’s fluidity raises critical questions for product liability, including whether an AI-generated model or system falls under the legal definition of a “product” for the purposes of liability claims, whether the AI’s developer, the company deploying it, or both, are subject to liability, and the scope of reasonably foreseeable risks and harms given that AI systems are self-designed to continuously evolve over time.

These questions are at the heart of ongoing litigation and legislative debates as courts and lawmakers grapple with how to apply traditional product liability frameworks to the ever-evolving AI landscape.

Recent Cases: AI in the Product Liability World

A few recent cases illustrate the legal challenges presented by artificial intelligence. In one case filed in Los Angeles Superior Court, plaintiffs allege that the AI-driven algorithms on various websites caused mental health harms, including addiction, anxiety, depression, and even suicide among minors. This litigation highlights that AI systems designed to maximize user engagement are now being alleged to exploit psychological vulnerabilities, especially in adolescents. Plaintiffs argue that these platforms are defectively designed and lack adequate warnings about their risks, making them unreasonably dangerous for minors.

The emergent application of product liability claims to AI systems is further exemplified in a case in the U.S. District Court for the Middle District of Florida, where the parent of a deceased child filed suit, alleging that an AI chatbot platform caused the wrongful death of her fourteen-year-old son. The plaintiff alleged that the chatbot engaged the minor in hypersexualized and manipulative conversations, ultimately leading to his suicide. The plaintiff brought counts of failure to warn and defective design, among others, raising questions about whether AI chatbots can be considered “products” for the purposes of product liability and whether their developers have a duty to warn users about foreseeable harms. This case highlights the unique challenges of AI product liability, including whether data sets used by AI platforms can be considered design flaws and whether the company had a duty and breached its duty to warn users about the dangers of its AI system, especially for children.

Theories of Liability: Design Defect, Failure to Warn, and Beyond

Traditional product liability theories—design defect, manufacturing defect, and failure to warn—are being tested in the context of AI. For example, with regard to design defects, if an AI system is alleged to cause harm due to its design facilitating biased decision-making or unsafe recommendations, can the developer be held liable? What will the evolution of design defect cases look like if the design of the AI product itself (assuming it is a “product”) is constantly changing, and will that evolution impact product liability litigation in other industries? Will the scope of design defect claims narrow or widen? For failure to warn claims, do companies have a duty to warn users about the limitations and risks of their AI systems, such as the potential for addiction or misuse? What are the reasonably foreseeable risks of using AI? What really is the “intended use” of AI? And concerning negligence, can a company be found negligent for failing to adequately test or monitor an AI system? If AI is available to anyone who has access to the internet, are there any constraints on a negligence claim? These theories are complicated by the “black box” nature of AI, which may make it difficult to pinpoint the cause of harm or assign responsibility. As AI becomes more ubiquitous, litigation involving claims of injury, wrongful death, and other harms allegedly caused by AI systems will inevitably loom large.

Looking Ahead: What You Need to Know

As AI continues to evolve, so, too, will the legal and regulatory landscape. Companies developing or deploying AI systems should take proactive steps to mitigate liability risks, which may include:

  1. Conducting Bias Audits: Regularly test AI systems for bias and disparate impact, as required by laws like New York City’s Automated Employment Decision Tools law.
  2. Implementing Transparency Measures: Disclose to customers how the company’s AI systems work, what data they use, and what risks they pose.
  3. Monitoring Legislative Developments: Stay informed about state and federal AI laws, which are continuously evolving. For a comprehensive overview of state AI legislation and the status of AI-related bills across the country, visit the Husch Blackwell AI State Law Tracker.
  4. Engaging Legal Counsel: Work with experienced attorneys to navigate the complex intersection of AI and product liability.

AI is a transformative technology that presents unprecedented legal challenges. As courts, lawmakers, and regulators grapple with the “black box” of AI, companies must be vigilant in understanding and addressing their liability risks.

For more information from the HB AI team, visit AI Attorneys | Husch Blackwell.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Patricia Alberts Patricia Alberts

Patricia has defended national and international clients, including Fortune 500 companies, in state and federal courts in California, Arizona, Nevada and Illinois. Manufacturers and transportation companies are among the clients in the automotive, industrial equipment, construction and mining industries that Patricia routinely represents.

Patricia has defended national and international clients, including Fortune 500 companies, in state and federal courts in California, Arizona, Nevada and Illinois. Manufacturers and transportation companies are among the clients in the automotive, industrial equipment, construction and mining industries that Patricia routinely represents. She has experience guiding clients through all phases of litigation, including trial, regarding product defect allegations, industrial accidents, catastrophic injury and wrongful death, asbestos & talc, employment, and class action – (employment defense).

Patricia’s practice focuses on product liability, complex torts, and general negligence litigation. Patricia is an experienced trial attorney, who has represented corporate defendants against product defect claims, in asbestos litigation, and in construction disputes. Further, Patricia has represented clients in individual plaintiff and class action employment litigation, including discrimination, harassment, and wage and hour claims. Clients appreciate her broad courtroom experience and her ability to streamline litigation strategies and solutions.

Photo of Paul Calfo Paul Calfo

As part of his extensive products and toxic tort practice, Paul handles a diverse range of products cases from chemical exposure and contamination to heavy machinery and lithium-ion battery fires. His California-based practice includes handling individual cases as well as large, high-risk matters…

As part of his extensive products and toxic tort practice, Paul handles a diverse range of products cases from chemical exposure and contamination to heavy machinery and lithium-ion battery fires. His California-based practice includes handling individual cases as well as large, high-risk matters arising from mass casualty injury and death events. He regularly and directly manages state and nationwide coordinated, related, and multidistrict dockets of toxic tort litigation with exposure claims related to chemicals such as PFAS and minerals such as asbestos. Paul has also handled cases involving glyphosate and orally ingested products/supplements.

In Los Angeles County, Paul regularly handles cases that fall under California’s Section 36, which provides plaintiffs with various means to rapidly move complex cases to trial within four months. Although such motions are routinely filed by plaintiffs and granted, Paul’s dogged refusal to concede have led to courts ruling in his favor, defeating Section 36 motions and leading to favorable resolution for firm clients.

Paul also handles products liability matters for multi-national franchisor corporations. He understands the complex underlying business relationships of companies while also understanding the potential liability of a complicated component or end-product. He is especially enthusiastic about cases that require him to dive into new products, and he aims to convey clients’ missions to a jury. Paul also enjoys working closely with our clients to synthesize the research and development needed to make products safe so that innovation can flourish.

A member of the firm’s Mass Tort & Product Liability team, Paul was the first associate to join the Los Angeles office after its opening. This situation presented an unusual opportunity to support partners across various teams with a broad array of litigation. Even early in his practice, Paul cut his teeth by representing both plaintiffs and defendants in everything from breach of contract, real estate, and premises cases to complex credit lending and corporate ownership disputes. He quickly learned transferable skills and a strategic overview of how best to work up and resolve or push different types of cases to trial. Paul continues to spread his practice between product liability and a variety of complex commercial litigation, and clients appreciate his ability to assist with multiple matters.

Paul handles matters in state court, federal court, and arbitration. He has spent extensive time in the courtroom from the beginning of his career, thriving on litigation strategy, trial, and oral argument. With a passion for chewing on difficult problems and finding backdoor solutions, Paul is always thinking about the challenges of clients’ cases.

Outside of the courtroom, Paul is an active member of the firm. He is a frequent mentor and a member of firm committees, and he enjoys guiding new associates so they can realize their full potential. He is a regular mentor of our first-year associates, with his favorite phrase being, “Get comfortable being uncomfortable; that mindset is the best way to grow.”

Before joining the firm, Paul interned as a member of the White House Counsel’s Office, where he participated in the resolution of various policy issues and confronted constitutional questions on the separation of executive and congressional power. Paul assisted with executive branch ethics codes as well as legal research concerning executive orders and the First and Fourteenth Amendments. He also assisted in preparing federal judicial nominees at all appellate levels for congressional hearings.

Photo of Jean Gabat Jean Gabat

Jean came to the practice of law with a passion for truth, justice, and service. She cares deeply about selflessly serving and giving a voice to others as they navigate the justice system.

Jean joined Husch Blackwell in 2024 to expand the firm’s…

Jean came to the practice of law with a passion for truth, justice, and service. She cares deeply about selflessly serving and giving a voice to others as they navigate the justice system.

Jean joined Husch Blackwell in 2024 to expand the firm’s capabilities in Pennsylvania and serve as boots on the ground in this litigation-heavy state. As a zealous advocate for the firm’s technology, manufacturing, and transportation clients, Jean handles personal injury, premises liability, and product liability cases for the nation’s largest transportation companies and complex indemnity and employment-related disputes for international staffing agencies.​

While Jean has a strong reputation for her leadership and communication skills, she is perhaps best known for her ability to connect with clients. Jean is dedicated to immersing herself in clients’ businesses and industries to fully understand their purpose, perspective, priorities, and goals. Driven by their needs and her commitment to fair results, Jean provides each client with a creative and customized approach, aiming to achieve the best outcome for all.