Another 'Sudden Acceleration' lawsuit

[modamoda]

does anyone have latest updates?

 

[Tam]

does anyone have latest updates?

It's all quiet on the western front.

 

[Texas]

In response to mknox as to the relevance of "creep off:" When you are driving at 3-5 mph with creep off, the default position of your right foot is on the accelerator. With "creep on" your default foot position is on the brake. Next assume your car rams into an unseen, solid obstacle. My automatic reaction, I learned the hard way, was to immediately apply the brakes. However, with creep off, my foot went straight down--on the accelerator. Because I always drive in Ludicrous mode, this sets the stage for a very dangerous situation.

This actually happened to me twice within a six-month period. Luckily I got the car stopped within a short distance without injury or physical damage. In both cases I was in a parking garage, moving at 3-5 mph, when I hit an unseen, unexpected, 7-8" high concrete curb.

My driving history has been about half stick shift, half automatic. In both, when creeping in a parking lot or garage the engine requires no pressure on the gas pedal. Rather, you control the car with the clutch and brake, or with the brake only for a car with an automatic transmission. Having formed this brake pedal habit in 50+ years of driving, it is difficult not to "hit the brakes" when you are startled by suddenly hitting something very solid in front of the car.

After the second "sudden acceleration" event I eventually decided that a combination of "creep on" and keeping my foot on the brake while slowly moving in a tight space would avoid any accidental full throttle starts. Since then I have had no recurrence of unintentional acceleration.

I don't suggest that everyone would react as I did. However, there must be some explanation for the "sudden acceleration" cases. I absolutely do not believe there is some mysterious defect at work, and that the correct explanation in every case is that the driver hit the accelerator instead of the brake. My experience suggests that choosing "creep on" might prevent some of these accidents.

 

[bhzmark]

It's all quiet on the western front.

attys likely told plaintiff that they arent taking this on contingency -- b/c they know it is a loser -- so he has to pay up to keep funding the litigation.

The face-saving effort made, and attys fees not likely to be paid, this will likely be dropped.

Unless a hedge fund that is short TSLA and desperate to generate negative publicity decides to fund the litigation.

 

[Electroman]

After the second "sudden acceleration" event I eventually decided that a combination of "creep on" and keeping my foot on the brake while slowly moving in a tight space would avoid any accidental full throttle starts. Since then I have had no recurrence of unintentional acceleration.

YUP !! Creep off is the primary reason for most of the 'sudden' acceleration in parking lots

 

[mknox]

In response to mknox as to the relevance of "creep off:" When you are driving at 3-5 mph with creep off, the default position of your right foot is on the accelerator. With "creep on" your default foot position is on the brake.

YUP !! Creep off is the primary reason for most of the 'sudden' acceleration in parking lots

Okay, I see what you are saying, but I have not once, ever even come close to slamming down on the "gas" when I meant to hit the brake. I don't even know how this happens since your foot has to be in a completely different position to push the brake pedal. Muscle memory always tells me where my foot is and which pedal it is on.

"Creep" is just a weird compromise made in the ICE world where engines cannot slow down to zero RPM and so a torque converter (or clutch) has to be employed. I doubt anyone doing a clean-sheet design of a car would ever have engineered this in to the vehicle in the first place. It just works that way because it has to.

But hey, there is the option to turn creep on or off so far be it from me to tell anyone else what their preference should be.

 

[Electroman]

But hey, there is the option to turn creep on or off so far be it from me to tell anyone else what their preference should be.

I hope they turn Creep On as the default behaviour and anytime when the user changes the setting they should have a popup with an Accept button that says,

"TURNING OFF CREEP WILL INCREASE THE RISK OF DRIVER SLAMMING THE ACCELERATOR INSTEAD OF BREAKS IN LOW SPEED SCENARIOS. IF YOU DO SO, DON'T BE A DICK AND BLAME TESLA FOR YOUR MISTAKE",

and also put a picture right below of that guy who sued Tesla recently for this same issue

 

[mknox]

I hope they turn Creep On as the default behaviour and anytime when the user changes the setting they should have a popup with an Accept button that says,

"TURNING OFF CREEP WILL INCREASE THE RISK OF DRIVER SLAMMING THE ACCELERATOR INSTEAD OF BREAKS IN LOW SPEED SCENARIOS. IF YOU DO SO, DON'T BE A DICK AND BLAME TESLA FOR YOUR MISTAKE",

I assume that's an attempt at humor???

It seems as silly as putting a warning up on an ICE car that says "Removing your foot from the brake may cause sudden unintended motion which may cause injury, death or property damage if you strike a pedestrian or the car in front of you".

If people are really slamming down on the wrong pedal, I think they should reconsider whether they should be driving or not. Seriously. It's not hard to distinguish between the go pedal and the stop pedal.

But as I said, the option to turn Creep On or Off exists, so go ahead and set it as you please, but why would you "default" to a behavior that mimics a design limitation of the old fashioned ICE car?

 

[Tam]

does anyone have latest updates?

Looks like there's some development on Friday, 03/31/2017:

Tesla Looks To Duck Half Of Unintended-Acceleration Suit - Law360

I am not its subscriber so I can't read the article.

I can't understand what they mentioned about a design defect not covered by warranty.

 

[bhzmark]

Tesla's response: https://assets.documentcloud.org/documents/3534581/Teslaresponse.pdf

highlights:

Tesla’s data demonstrates that each of the SUA incidents alleged in the FAC resulted from human error, and Tesla disputes that there is a legal duty to design a failsafe car. However, for purposes of this motion, which requires that the Court assume the truth of Plaintiffs’ allegations, Tesla moves to dismiss 13 of the 27 causes of action in Plaintiffs’ First Amended Complaint (“FAC”) on the ground that they are fatally defective under the laws applicable to those claims.​

The rest of the Tesla response doesn't make for good non-lawyer reading. It is mostly an argument that many of the plaintiff's claims should be dismissed because even assuming the truth of their (laughable) factual allegations, their legal arguments don't meet the requirements of the laws under which they are brought.

Basically, this moron: Richard D. McCune - McCuneWright LLP

is going to have to make a significant losing investment in responding to this motion to dismiss -- throwing good money after bad.

Or maybe Richard McCune is actually smart and knows this is a loser, and thus the only other explanation is that his client is wealthy and paying for the costs of a losing litigation in an extended face-saving exercise and he is happy to milk his client in this loser litigation.

McCune and his merry band of idiots are about to "EXPERIENCE UNCOMMANDED FULL POWER MOTION TO DISMISS GRANTED."

 

[bhzmark]

McCune and his idiotic scriveners try to hide behind the passive voice in their laughable legal theory that car mfrs should design cars to override stupid driver input. "Plaintiff (who doesn't know his right from his left), experienced uncommanded full power acceleration!" The McCune complaint is a great example of fallacious reasoning, bad legal theory hiding behind sentences that are embarrassed to have even been written.

By contrast, this Forbes article is an intelligent treatment of car design and the trade off between driver assistance vs. driver input.

Here's How Tesla Solves A Self-Driving Crash Dilemma

Although McCune is sometimes pretending, through his illiterate use of the passive voice, that he is leaving open the option that the Tesla just magically leapt forward "uncommanded" , he really knows the evidence will prove him dead wrong on that -- the redundant accel pedal sensors will show that his face-losing client just stomped on the wrong pedal -- like so many old people do in their new cars.

So McCune is floating the novel and really laughable legal theory that cars should be designed to ignore clear and unambiguous driver input even when autopilot type functions are NOT engaged.

The article makes a good case that Telsa's design decision to "minimize user annoyance from false positives, as well as to not second-guess the driver’s actions in the middle of an emergency" was a wise one. And it certainly wasn't negligent, or inconsistent with the various laws applicable to consumer products.

Indeed designing a car to refuse to respond to clear driver input itself would more likely be negligent and culpable design.

 

[Tam]

...intelligent treatment of car design and the trade off between driver assistance vs. driver input...

Thanks for the link to the article that's very thought provoking.

If I can understand from the plaintiff, they say that if they floor the accelerator and there is the wall in front, the car should prevent accidents and refuse to obey human command of acceleration.

Even in airline Autopilot, a human can still issue a suicidal command to an autopilot system onboard for the crash in Germanwings Flight 9525.

If we do not want automation to obey human's judgement/input, we must forego the word "Autopilot" and start using other words.

Such as Waymo Koala car that has no brake pedal, accelerator pedal, nor steering wheel for the system to obey human's steering, braking or accelerating.

 

[bhzmark]

There is an interview with McCune where he gets to try out his laughable legal theory as he has to deal with the evidence that will show that his face-loser client stomped on the wrong pedal:

From: [TESLA DEFECT] Full transcript of interview with celebrity’s attorney on Tesla’s sudden acceleration

Q: Tesla has been claiming the sudden acceleration was the result of the driver fully pressing the accelerator pedal. On what ground is Tesla asserting such a position? What kind of evidence is there to prove the accident was not the plaintiff’s fault?

A: I can tell you from our perspective that Mr. Son knows what he did and what he did not as no reasonable person would just put the pedal all the way down to the floor as they are approaching a garage that goes through their living room. That doesn’t make any sense. I think Tesla will try to resort to the data logs to support their position. I think when we review what they have, it seems like there are some inconsistencies which would indicate to us that it is not reliable.

If this car was properly engineered, it wouldn’t allow someone to drive into the wall of the house. That’s just poor engineering in our view. That doesn’t make any sense to us when the car knows it’s approaching the garage. It knows it’s at home and knows there is a wall. A properly engineered car like the Tesla, which excels for the kind of money that it sells for, would have been programmed to say there has to be an error in instruction. It would not have driven straight in through a wall.
​

In other words, he is saying "we will try to dispute the data logs as unreliable when they show that out stupid client pressed the wrong pedal, but when we lose that fight our real plan is to say that cars should be designed to ignore "AN ERROR IN [DRIVER] INSTRUCTION" and thus overrule the clear driver input and not respond to the driver's instruction.

I'll bet that other PI attys, and likely even McCune and his idiotic scriveners themselves, have argued the exact opposite position -- that a car that ignores a clear driver input was in fact a negligent design or defect.

 

[GoTslaGo]

There is an interview with McCune where he gets to try out his laughable legal theory as he has to deal with the evidence that will show that his face-loser client stomped on the wrong pedal:

From: [TESLA DEFECT] Full transcript of interview with celebrity’s attorney on Tesla’s sudden acceleration

Q: Tesla has been claiming the sudden acceleration was the result of the driver fully pressing the accelerator pedal. On what ground is Tesla asserting such a position? What kind of evidence is there to prove the accident was not the plaintiff’s fault?

A: I can tell you from our perspective that Mr. Son knows what he did and what he did not as no reasonable person would just put the pedal all the way down to the floor as they are approaching a garage that goes through their living room. That doesn’t make any sense. I think Tesla will try to resort to the data logs to support their position. I think when we review what they have, it seems like there are some inconsistencies which would indicate to us that it is not reliable.

If this car was properly engineered, it wouldn’t allow someone to drive into the wall of the house. That’s just poor engineering in our view. That doesn’t make any sense to us when the car knows it’s approaching the garage. It knows it’s at home and knows there is a wall. A properly engineered car like the Tesla, which excels for the kind of money that it sells for, would have been programmed to say there has to be an error in instruction. It would not have driven straight in through a wall.
​

In other words, he is saying "we will try to dispute the data logs as unreliable when they show that out stupid client pressed the wrong pedal, but when we lose that fight our real plan is to say that cars should be designed to ignore "AN ERROR IN [DRIVER] INSTRUCTION" and thus overrule the clear driver input and not respond to the driver's instruction.

I'll bet that other PI attys, and likely even McCune and his idiotic scriveners themselves, have argued the exact opposite position -- that a car that ignores a clear driver input was in fact a negligent design or defect.

Right.

So McCune would argue that a person owning a $100k car/SUV should have that car gimped. I can imagine the headlines after that:

"Tesla owners targeted for car-jacking and robberies"

Because their cars were gimped by the court system...

and well, we all know Tesla owners and drivers are rich so lets just stand in front of their cars and pull out a gun on them. They can't run us over anyways! Easy pickin's...

If you think about it, right now, if someone were to try to stand in front of a Tesla and carjack them, there is a good chance that person would be dead before they could pull the trigger. The car accelerates damn fast and quietly, as we all know. How fast can someone react against a 2.8s 0-60, especially with no other cues (revving engine, etc...)?

Oh, and maybe they'll insist it should just be a wall. Well a car could be a wall, and yes you can use a car as a roadblock. Considering the power and mass of a Tesla, it would probably easily smash through.

In certain self-defense scenarios, often one's best defense/weapon is one's car.

//rant over (yes maybe paranoid, but semper paratus).

 

[Tam]

Update:

Tesla Fails to Get Unintended Acceleration Lawsuit Dismissed


Breach of warranty claims to proceed

The judge dismissed certain claims.

The plaintiffs can amend their claims: trade practice violations.

 

[bhzmark]

Importantly it was dismissed as to their moronic design defect claims, leaving only materials and workmanship manufacturing defects.

"The Court finds (1) that Plaintiffs have adequately pleaded breach of Tesla’s express basic vehicle limited warranty but (2) that Plaintiffs have not adequately pleaded that Tesla’s marketing statements create additional warranties."

"The parties agree that Tesla’s basic vehicle limited warranty only covers defects in materials and workmanship, which are manufacturing defects, not design defects.1"
. . .
“A manufacturing defect exists when an item is produced in a substandard condition,” and “
uch a defect is often demonstrated by showing the product performed differently from other ostensibly identical units of the same product line.” McCabe v. Am. Honda Motor Co., 100 Cal. App. 4th 1111, 1120 (2002) (citing Barker v. Lull Eng’g Co., 20 Cal. 3d 413, 429 (1978); Lewis v. Am. Hoist & Derrick Co., 20 Cal. App. 3d 570, 580 (1971)); see also Miller v. ALZA Corp., 759 F. Supp. 2d 929, 941 (S.D. Ohio 2010) (citing Ohio Rev. Code Ann. § 2307.74) (manufacturing defect occurs when a product deviates from an intended design); Lloyd’s Syndicate No. 5820 v. AGCO Corp., 294 Ga. 805, 808 (2014) (stating that a manufacturing defect occurs when a product deviates from an intended design); Boudreau v. Baughman, 322 N.C. 331, 346 (1988) (“A manufacturing defect, on the other hand, is caused by a miscarriage in the manufacturing process that produces an unintended result.”)
. . .
Plaintiffs have pleaded that (1) there is an express warranty in writing, (2) the accelerator system and the braking system contain defects, and (3) the class vehicles did not conform . . . . Plaintiffs specifically pleaded that the class vehicles did not conform, i.e., that the accelerator control system and the braking system were defective. Plaintiffs’ allegations are specific enough at this stage of the litigation, and important to note that discovery has not yet occurred, so it is impossible for Plaintiffs to plead with complete detail how their vehicles differed from the intended design.

[i.e., the specific vehicle had to be operating different from its intended design. So that complaint stands. But as to all the others:]

. . .

Shastrula concedes that he does not have standing as a consumer under the Ohio Deceptive Trade Practices Act, so he does not oppose dismissal of claim 23. Therefore, the Court dismisses claim 23 with prejudice.

. . .
Plaintiffs have not pleaded that (1) a specific rule or regulation characterizes the practice as unfair or deceptive or (2) an Ohio state court has found the practice unconscionable or deceptive. (See FAC, Docket No. 25 ¶¶ 296–304.) Accordingly, the Court dismisses this claim.

. . .
Here, Plaintiffs have alleged that “Plaintiff Shastrula and the Georgia Class were injured as a result of Defendant’s conduct” and that “Plaintiff Shastrula and the Class Members overpaid for their Defective Vehicles and did not receive the benefit of their bargain, and their vehicles have suffered a diminution in value.” (FAC, Docket No. 25 ¶ 232.) However, Plaintiffs have not stated that they will experience any future harm. (See id. ¶¶ 227–35.) Therefore, they have not adequately pleaded this claim.

. . .

Here, Shastrula brings this claim on behalf of the members of the Georgia class. (FAC, Docket No. 25 ¶ 83.) Shastrula alleges that his Model X experienced uncommanded full power acceleration on February 27, 2017. (Id.) Shastrula was not a plaintiff in the initial complaint. (Compl., Docket No. 1.) Plaintiffs then added Shastrula as a plaintiff in the first amended complaint, which they filed on March 1, 2017. (FAC, Docket No. 25.) Because Plaintiffs filed the first amended complaint two days after Shastrula’s Model X crashed, they have not met the notice requirement. Therefore, the Court needs to dismiss this claim with prejudice.
. . .
Here, Plaintiffs have not pleaded that the contracts are unenforceable or that they are asserting unjust enrichment in the alternative. (FAC, Docket No. 25 ¶¶ 273–78.) Therefore, the Court dismisses this claim."


McCune lost on all the claims that matter. His only surviving claim is one that won't get class cert. He's embarrassing himself and his loser wrong-pedal-pressing client.

 

[Tam]

It sounds like the class action lawsuit is dissolved as most of the plaintiffs would drop the case. The rest which is an owner and his son will be individual claims.

It's better for Tesla this way because Class Action suit can be much more expensive than just in a case of owner and son.

Bloomberg - Are you a robot?

 

[Tam]

Korean Star's Defamation Suit Over Tesla Crash Tossed

The lawsuit is dismissed if the plaintiff does not amend the complaint within 15 days from yesterday:

1) Filed outside of the one-year statute of limitations on slander and defamation
2) "Tesla’s statements about its braking and collision warning features simply stated the designs were meant to improve safety, not that it would prevent Son’s sudden acceleration incident."

 

[Tam]

There's another article but I don't have access to read it:

Tesla Beats Korean Movie Star’s Defamation Claims in Crash Suit