I’m sure more sympathetic to the mom, but I think they would rule for Tesla in the same way that a jury recently dismissed charges against Tesla for a crash caused by driver inattention when autopilot was engaged. I’m sure they felt sad for the driver but the car manual states clearly that the driver must remain attentive when autopilot is engaged. Emotion is one thing and the law is another and fortunately most juries seem to be able to make the distinction.
Again, I go back to computers (cars are becoming computers after all). Many antiviral software companies provide a bare-bones free version that can be upgraded for a fee to much more protective deluxe programs. That’s comparable to Tesla’s free autopilot versus the $15K FSD.
If the computer of someone using the freeware gets infected by something that could have been prevented by the deluxe version, is the software company at fault? By the logic of your analogy you would have to argue yes since there would be no marginal cost to the company to have activated the deluxe program.
That strikes me as insanity that would put a lot of companies out of business.
Did you know that modern vehicles limit the top speed of their engines by software? Its called a speed limiter. The car computer is programmed to have a pre-determined top speed limit to prevent engine damage. This means that through a simple change in the program at virtually no marginal cost cars can be made to go no faster than 70 MPH. That would certainly prevent a lot of accidents caused by speeding. Should auto makers be held liable for allowing their cars to go faster than 70MPH? Seems like the same principle—lives saved through a zero marginal cost change in a software program.
Where are the lawsuits?
My quick Wikipedia read of Grimshaw v. Ford suggests to non-lawyer me that Ford lost because Ford management had crash test data demonstrating that the Pinto gas tank was unsafe compared to industry standards and had engineers telling them that it could be fixed for a nominal cost. Yet they still sold the deficient cars.
In your hypothetical there is nothing to suggest that the Tesla vehicle is safety deficient relative to its peers.