LITIGATION TRENDS 2025 | 97 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C Courts Adapt to New Technology Artificial intelligence is increasingly a part of consumers’ everyday lives. AI is now being incorporated into cars, household equipment, healthcare devices, and other products. This heightened use raises the question of what happens when AI inevitably malfunctions. Product liability law presents a potential answer. An important threshold question is whether AI even constitutes a “product” – as opposed to a “service.” Traditionally, “products” for the purposes of product liability suits have needed to be tangible, whereas software has often been considered a service and thus not subject to product liability laws. As such, courts typically analyze AI as a service because it is an intangible software that essentially steps into the shoes of humans when it makes decisions. For example, in Rodgers v. Christie, 795 F. Appx. 878 (3d. Cir. 2020), the Third Circuit upheld dismissal of a product liability claim based on an AI risk evaluation model that was used as part of New Jersey’s pretrial release system where a man who was granted pretrial release went on to murder a young boy shortly after release. The court reasoned that the “information, guidance ideas, and recommendations” provided by the AI meant it was a service, rather than a product. However, traditional “products” like cars and medical equipment are increasingly designed to contain AI. As a result, the service/product distinction with respect to AI may begin losing importance if courts find these AI-enabled products to be subject to product liability — an open question for now. Even if courts do categorize AI as a product in certain instances, the claim still might not be actionable so long as the AI was safe at the time of sale. AI’s ability to learn and evolve means that sometimes defects might not emerge until after it has left the manufacturer’s hands. There is a dearth of case law on this issue so far, but at least one case addressed it. In Jones v. W + M Auto, 31 A.D.3d 1099 (N.Y. App. Product Liability David Singh Co-Head Silicon Valley david.singh@weil.com Diane Sullivan Co-Head New York diane.sullivan@weil.com E M P 96 | Weil, Gotshal & Manges LLP
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