ICLE Amicus to California Supreme Court in Ortiz v Daimler Trucks
In accordance with California Rule of Court 8.500(g), we are writing to urge the Court to grant the Petition for Review filed by Petitioner Daimler Truck North America LLC (“Petitioner” or “Daimler”) in the above-captioned matter.
At root, products liability doctrine and public policy concerning innovative technologies share a common aim: to manage tradeoffs in the face of uncertainty. No product can be made perfectly safe, and attempting to do so often reduces welfare—including safety—on other margins. This is especially true when evaluating emerging technologies, such as advanced driver assistance systems, where the benefits of innovation must be weighed against the risk of chilling progress. Public policy decisions that impose additional safety requirements inevitably entail opportunity costs. For instance, dramatically increasing the mandated safety equipment on commercial trucks may reduce certain categories of accidents, but it can also lead to higher vehicle costs, reduced freight capacity, and greater barriers to market entry. These effects may cascade into higher consumer prices, fewer available goods, and reduced access to essential services—particularly in underserved areas. Even well-intentioned efforts to maximize safety in one domain can inadvertently diminish it in others.
To this end, we believe the Petitioner is correct in pointing out that:
By requiring, through judicial fiat, that DTNA and all commercial truck manufacturers… now have a duty to equip vehicles with technology that is still under study by NHTSA, the Court of Appeal effectively bypassed NHTSA and the rulemaking process for setting safety standards governing the design of heavy-duty trucks. (Pet. 11.)
The fact that collision-avoidance systems like automatic emergency braking (“AEB”) remain under study by the federal agency principally responsible for national vehicle safety standards—NHTSA—speaks volumes. This is not to suggest that NHTSA’s process is infallible, but rather to underscore that even the expert body tasked with evaluating these technologies and their tradeoffs is proceeding with caution. Contrary to the assumptions made by the court below, the introduction of advanced automation technologies into commercial vehicles is neither a self-evident good nor a regulatory afterthought. These systems are still being scrutinized precisely because they involve difficult tradeoffs. Overreliance on automation, for example, may lead to increased driver complacency—a behavioral response long studied in the economic literature as the Peltzman effect (See, e.g., Decision Lab, The Peltzman Effect, https://thedecisionlab.com/reference-guide/psychology/the-peltzman-effect, last visited Aug. 7, 2025)—where gains in technological safety are offset, in whole or in part, by riskier human behavior. That the federal government has not yet mandated these systems, despite years of research and public pressure, reflects a policy judgment that their benefits are not yet unequivocal or costless.
The Court of Appeal’s recognition of a novel duty of care—effectively requiring truck manufacturers to preemptively install optional safety technologies like AEB—raises serious concerns for the future of innovation and public safety. By shifting highly technical design decisions from engineers and regulators into the hands of juries and judges evaluating events in hindsight, the decision introduces legal uncertainty into what had been a carefully calibrated area of commercial activity.
The likely result of this expanded tort duty is to deter manufacturers from pursuing or introducing new safety technologies unless and until they are mandated by regulation—creating a paradox, as regulators typically base mandates on technologies that have already been developed, tested, and brought to market. If manufacturers are discouraged from innovating in the first place, regulators will have little upon which to base future safety requirements. In effect, the California court’s approach risks turning automotive safety into a speculative exercise in “science fiction,” where the only technologies regulators could mandate would be those imagined, rather than those proven in the real world. The larger risk is that judicially-imposed duties of this kind will distort innovation incentives across industries, undermining the incremental and iterative processes that typically drive meaningful progress.
These concerns are especially acute in the context of emerging artificial intelligence systems, such as driver-assistance technologies and semi-autonomous features, where the optimal mix of capabilities on the road remains unsettled. Regulators, researchers, and industry participants continue to assess how human drivers interact with increasingly automated systems, and how those systems perform under real-world conditions. Prematurely imposing tort duties that treat optional, evolving technologies as baseline safety requirements risks locking in early design choices and penalizing the very experimentation that is necessary to improve outcomes over time. In such a dynamic environment, the path to safer roads is not to mandate specific configurations through litigation, but to allow a flexible, data-driven process of evaluation and refinement led by experts and guided by evidence.
We respectfully urge the Court to grant review and clarify that manufacturers do not owe a legal duty to accelerate the development or deployment of alternative products, nor should they be held liable for commercialization decisions made in good faith under conditions of regulatory and technical uncertainty. Further, this case raises the same core question now pending before the Court in Gilead: whether a company may be sued for failing to bring to market a product that, in hindsight, might have been safer or more desirable than the one actually sold. (Case No. S283862, Review granted May 1, 2024.) These identical concerns make Ortiz an ideal candidate for a “grant and hold” order pending resolution of Gilead, which will directly bear on the viability of the duty recognized below. Until this threshold issue is resolved, imposing tort liability based on the timing or scope of innovation decisions risks undermining California’s longstanding commitment to balanced, innovation-friendly product liability law.
Interest of Amicus Curiae
The International Center for Law & Economics (“ICLE”) is a nonprofit, nonpartisan research organization dedicated to advancing policy grounded in sound economic principles. Our work focuses on applying the tools of law and economics to contemporary legal and regulatory issues, particularly those involving innovation and the institutional frameworks that support dynamic markets. We study both artificial intelligence (“AI”) and the principles of liability—particularly products liability—that are directly implicated in the present matter. In submitting this letter, we seek to outline several key concerns regarding the potential chilling effects on innovation that could result from the Court of Appeal’s ruling in this matter.[1]
The Court of Appeal’s Duty Theory Would Expand Liability Without an Actual Defect
The Court of Appeal’s recognition of a duty to equip commercial trucks with emerging safety technologies like AEB represents a substantial and unwarranted departure from traditional California products liability law. Historically, plaintiffs have been required to show that the product that actually injured them was defective. (Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30, 237 Cal.Rptr.3d 205, 424 P.3d 290; Kalash v. Los Angeles Ladder Co. (1934) 1 Cal.2d 229, 233.) By contrast, the theory accepted below imposes liability not for any defect in the truck as manufactured or sold, but for the manufacturer’s decision not to include a still-evolving, non-mandated technology at the time of production. That shift in doctrine opens the door to a much broader form of liability—one that could apply to any product, at any time, simply because a plaintiff can argue that a better version might have been possible sooner.
Indeed, the history of regulatory examination and market adoption of these sorts of AEB systems suggests that Petitioner was moving at a reasonable pace in integrating them. Indeed, NHTSA’s measured approach to adopting these systems as a standard was vindicated by its 2023 investigation into false AEB activations in Freightliner trucks—the very manufacturer in this case—where 18 complaints documented trucks braking inappropriately ‘with no actual roadway obstacle present.’ (Tyson Fisher, NHTSA Investigates Automatic Emergency Braking on Daimler Trucks, Landline.MEDIA, May 31, 2023, https://landline.media/nhtsa-investigates-automatic-emergency-braking-on-daimler-trucks/). Thus NHTSA’s cautious timeline reflected genuine technical concerns which, undoubtedly, the manufacturers were also considering. Moreover, the market has already been responding effectively: by 2023 a majority of the manufacturers who were part of the Truck and Engine Manufacturer’s Association (which includes Daimler (see Truck & Engine Manufacturer’s Association, Member Companies, https://www.truckandenginemanufacturers.org/companies/ last visited Aug. 7, 2025) were installing AEB technology on a “majority of new highway tractors.” In recent comments to NHTSA, however, the Association voiced a concern which echoes well the sentiment of this letter:
(Engine and Truck Manufacturer’s Association) member companies and their system suppliers constantly improve AEB technologies to more accurately detect objects in the road ahead so the systems can better differentiate between a potential collision and other situations, thereby more effectively mitigating potential crashes.
Simultaneously, manufacturers and designers improve AEB systems to minimize the false activations that cause drivers and fleets to lose confidence in the technology and can cause other unintended adverse safety consequences. (Comments Of The Truck And Engine Manufacturers Association, Heavy Vehicle Automatic Emergency Braking; AEB Test Device, NHTSA Docket No. NHTSA-2023-0023, https://www.regulations.gov/comment/NHTSA-2023-0023-0667.)
The risk of the expansive liability that the decision below would encourage is particularly acute when the harm at issue is speculative and untethered from any defect. The truck in this case complied with all applicable federal and state safety standards. The plaintiffs do not allege a failure to warn or a malfunction. Instead, they assert that Petitioner should have opted to include a particular advanced driver assistance system—despite its optional status and the lack of any regulatory mandate at the time. That kind of hindsight-based duty theory transforms a lawful, fully regulated product into a source of liability simply because the manufacturer did not predict, and preemptively act on, evolving preferences and technologies.
As with the pharmaceutical development at issue in Gilead, decisions about product design—particularly with respect to emerging technologies—are complex and layered. Introducing a new safety system is not costless, nor is it automatically net beneficial. Engineering constraints, interoperability, reliability, consumer training, and the risk of overreliance all factor into whether and when to incorporate such tools. The Court of Appeal’s suggestion that manufacturers knew the system was better, and should therefore have included it, elides those difficult tradeoffs. The reality is that even regulators such as NHTSA have taken years to evaluate these technologies—precisely because the costs and benefits are not obvious, and the wrong configuration may undermine safety.
The plaintiffs’ duty theory also rests on a fundamental misunderstanding of how manufacturers operate in the face of technological uncertainty and market complexity. The question here is not whether the collision-avoidance system could ultimately prove beneficial—many innovations are—but whether Petitioner was under a legal obligation to adopt it at a time when neither federal regulators had mandated it nor the relevant customer base had widely embraced it. In reality, Petitioner was actively working to integrate the system into its product offerings and understand where it would provide the greatest value.
Adoption decisions during this period reflected a range of considerations—technical readiness, compatibility with existing fleet operations, driver preferences, and empirical performance data—not simply cost of adoption. Drivers accustomed to traditional braking systems may have resisted the perceived intrusiveness or unpredictability of early-generation AEB, especially where reports of false activations raised safety concerns. When an optional system is offered at nominal cost and still not widely adopted by sophisticated fleet operators, that fact should carry important evidentiary weight. To retroactively impose a tort duty to include the system in all vehicles, despite the absence of a regulatory requirement and clear market demand, would run counter to the very conditions of uncertainty in which these design decisions were made.
California law has never recognized a duty to preemptively innovate, nor a duty to equip products with technologies that remain optional and unmandated by expert regulatory agencies. To adopt such a duty now would undermine the stability of product design decisions across industries and invite courts to act as de facto technology regulators—without the tools, expertise, or perspective to balance long-run innovation incentives with short-term litigation pressures.
The Court’s Foreseeability Analysis Overlooks Uncertainty, Tradeoffs, and Regulatory Context
Implicit in its application of the Rowland foreseeability factor, the Court of Appeal relied heavily on the general proposition that rear-end truck collisions are foreseeable. But this flattens a much more complex analysis. As this Court has emphasized, Rowland requires courts to assess foreseeability at a general level—asking not whether this specific injury was predictable, but whether the category of conduct at issue is sufficiently likely to result in the kind of harm alleged to justify imposing a duty. (Cabral v. Ralphs Grocery Co., 51 Cal.4th 764, 772 (2011).) But even at that level of abstraction, the foreseeability inquiry cannot ignore the context in which a manufacturer is making design and commercialization decisions about an emerging technology.
Petitioner, like other manufacturers, was engaged in developing and refining advanced safety technologies—technologies whose deployment involved meaningful tradeoffs in cost, usability, and driver acceptance. The foreseeability question cannot be reduced to “was a rear-end collision foreseeable?”—of course it was—but must instead be framed around the foreseeability of preventable harms given the real-world constraints of product development, incomplete information, and market readiness.
The Court of Appeal’s foreseeability framework effectively punishes manufacturers for the very uncertainty that defines emerging technology development. NHTSA itself characterized AEB technology as emerging and requiring further validation through the 2010s—precisely because the optimal deployment, potential false activation risks, and behavioral adaptation effects remained unresolved. (National Highway Traffic Safety Administration, Federal Motor Vehicle Safety Standard; Automatic Emergency Braking, 49 CFR Part 571 (2015), https://www.govinfo.gov/content/pkg/FR-2015-10-16/pdf/2015-26294.pdf) By treating the ex post occurrence of an accident as evidence that the manufacturer should have ex ante anticipated the need for a specific technological response, the court inverts the proper temporal orientation of the foreseeability inquiry. Under this logic, every safety innovation becomes retrospective proof that its absence was unreasonable—a standard that would render product development decisions essentially strict liability determinations dressed in negligence doctrine. This approach is particularly problematic when, as here, expert regulatory bodies were themselves still evaluating the technology’s optimal deployment.
Manufacturers were navigating a landscape of emerging technology, uncertain adoption, and evolving standards. In this context, the foreseeability analysis should have considered not every potential downstream injury, but whether it was reasonably feasible—ex ante—for Petitioner to treat non-adoption of an optional system as categorically unreasonable. By treating optional AEB systems as presumptively required, the court below flattened the analysis and imposed a duty without regard for the careful, iterative process by which both regulators and manufacturers evaluate emerging technologies.
Moreover, this narrow view of foreseeability ignores the tradeoffs inherent in requiring the early adoption of new technologies. The tort system must not overlook the downstream harms that arise when well-intentioned mandates distort complex systems. AEB systems, like all safety technologies, entail costs—not just financial, but operational and behavioral. Driver discomfort or resistance, incompatibility with fleet logistics, and the risk of false activations all shape whether and how these systems are integrated. Requiring their inclusion in all trucks, regardless of use case, driver training, or real-world performance, risks unintended consequences—such as increased costs for goods movement, reduced fleet turnover, or even degraded safety if drivers over-rely on automation.
These are precisely the kinds of tradeoffs regulators are best positioned to evaluate. Tort law is not well-suited to substitute its own hindsight judgments for this kind of prospective, system-level analysis.
Public Policy Factors Undermine the Court of Appeal’s Holding
The Court of Appeal rejected Petitioner’s concern that recognizing a duty here would unreasonably require manufacturers to adopt novel technologies as they become available. (Op. at 19-20). It framed the duty as a narrow one, triggered only where a manufacturer declines to include a safety feature that is allegedly effective, feasible, and already available at the time of sale. (Id.) But this dismissal of Petitioner’s concerns did not give due attention to the downstream innovation effects. In practice, recognizing a duty based on availability alone collapses the line between emerging and established technologies and invites courts to impose liability whenever a newer, potentially better safety system could have been included but wasn’t. That is not a narrow duty—it is a deeply expansive one, and it risks distorting the careful, case-by-case tradeoffs that innovation requires.
This internal contradiction in the Court of Appeal’s reasoning deserves closer scrutiny. Petitioner did not ignore or suppress the technology at issue—it invested in developing Detroit Assurance 4.0, brought it to market, and on multiple occasions sought to persuade its customers to adopt it. The company provided marketing materials and training that emphasized the system’s safety benefits, highlighting its potential to reduce collisions and save lives. These efforts were aimed at encouraging adoption by a customer base that was, at the time, still acclimating to the presence of automated driver-assistance features in commercial vehicles. The problem, as the court sees it, is not that Petitioner failed to innovate or withheld a safety system, but that it respected its customers’ decision not to include the system as standard. In effect, the Court has treated Petitioner’s refusal to mandate the technology—despite its affirmative efforts to encourage its use—as a basis for liability. That is not a failure of reasonable care; it is a reflection of market realities and regulatory discretion during a period of technological transition. Thus, in essence, the Court of Appeal would allow legal liability against Petitioner for not forcing wide-spread market adoption fast enough.
The concerns that this case creates are not hypothetical. In the table saw industry, for example, this dynamic played out in the table-saw safety technology surrounding SawStop. (See Tanner B. Samples, Protecting “Learned Hands”: Table Saw Injuries, the Sawstop Saga, and How Our Design Defect Doctrine Is Disincentivizing Safety, 69 Geo. L. Rev. 671, 676-79). There, the inventor of a breakthrough safety system alleged that leading manufacturers actively avoided adopting or even acknowledging the technology—not because it was ineffective, but because they feared that its inclusion in some products could be used against them in design defect litigation. (Id.) Rather than take the legal risk of being the “first mover,” manufacturers kept the innovation out of their product lines altogether. The chilling effect was so strong that the industry’s apparent position became circular: no one adopted the safety feature because it was “not industry standard,” and it wasn’t industry standard because no one adopted it.
Ortiz risks replicating—and metastasizing—that pathology. Here, Daimler did exactly what the saw manufacturers feared: it developed an advanced safety system, marketed its benefits, and tried to convince a hesitant customer base to adopt it. Rather than being rewarded for this leadership, it now faces liability for failing to make adoption mandatory. The Court of Appeal’s decision effectively converts the manufacturer’s own innovation into a litigation trigger. That sends the wrong message. It tells manufacturers that if they try to introduce a new safety feature, they may not just fail to persuade the market—they may expose themselves to legal claims for not imposing it unilaterally. This is precisely the incentive structure that drove the SawStop standoff and potentially stifled adoption of a technology now widely understood to reduce harm. If this Court does not correct the Ortiz rule, that same perverse logic will take hold in industries like trucking, where technological improvement depends on iterative development, fleet-level adoption, and gradual normalization—not on one-size-fits-all mandates imposed through litigation. And whether a manufacturer’s failure to include a given technology is characterized as a “design defect” or a “negligent omission,” the deeper risk is the same: that liability will attach not just for a known hazard, but for failing to predict the optimal timing and scope of adoption of still-evolving systems.
This concern is magnified in a field like commercial vehicle design, where innovation is iterative, operational constraints vary widely, and driver acceptance is critical. Even if a technology like AEB holds promise—and is ultimately proven beneficial—it does not follow that its earlier, discretionary adoption is the proper basis for a tort duty. At the time Petitioner built the truck in question, Detroit Assurance 4.0 was offered as an option, not required by federal regulation, and still undergoing field evaluation. Some customers declined to include it. Drivers were still adapting to its functionality. And regulators, including NHTSA, had not yet finalized a standard. That is not an environment of legal clarity; it is one of ongoing policy calibration. Tort law should not short-circuit that process.
Indeed, the cost of recognizing a duty in this context is the risk that manufacturers will either delay innovation to avoid creating retroactive liabilities or commercialize only the most defensible, conservative solutions—those least likely to attract litigation, not those most likely to advance safety. Economic incentives operate at the margin, and even a modest shift in legal exposure can reconfigure product development pipelines. The Court of Appeal’s decision gives insufficient weight to this systemic risk. The tort system, when overextended, can suppress exactly the kind of progress it purports to promote.
Conclusion
The Court of Appeal’s decision threatens to transform California tort law from a system that encourages reasonable care into one that imposes retroactive liability for failing to predict technological futures. By imposing a duty to install non-mandated safety systems during their developmental phase—when even a relevant regulator was proceeding cautiously—the decision inverts the proper relationship between regulatory expertise and judicial oversight, substitutes hindsight bias for ex ante reasonableness, and risks chilling the very innovation it purports to promote. We respectfully urge the Court to grant review to preserve California’s balanced approach to products liability and prevent the emergence of a “duty to innovate” that would ultimately harm both innovation and safety.
[1] No party or counsel for a party authored or paid for this amicus letter in whole or in part.