ABSTRACT
A recent wave of litigation against technology companies is forcing courts to address novel legal questions surrounding whether digital technologies are products subject to product liability claims. Product classification is a question of law, but the pluralistic conditions driving courts’ ad hoc assessment have led to a fragmented answer to this question for digital technologies. For example, the very same online gambling application was classified as a product in one state but not in another. Even if classified as a product, digital products that integrate AI-driven components frustrate the traditional defectiveness assessment in product liability law because they exhibit ‘behavior’ rather than static conditions typical of traditional products. While natural and legal persons can be held to behavioral standards in fault-based liability law, products cannot. This Article proposes a uniform approach to classification for digital products. It then sets forth a method for assessing the defectiveness of products that behave through a new category of ‘risk management defects’.
Duffourc, Mindy, New Defects: Liability for Product Behavior (August 10, 2026).
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