[Sudden Acceleration Lawsuit]② Shift of Burden of Proof for Sudden Acceleration Accidents... The Ball Moves to the 22nd National Assembly

Current Product Liability Law Imposes Burden of Proof on Consumers
Forensic Evidence from National Forensic Service Shows Zero Cases Recognizing Sudden Acceleration
'Shift Burden of Proof to Manufacturers' Dohyeon Act Also Abandoned in 21st National Assembly

Editor's NoteOn the 1st, a vehicle ramming accident near Seoul City Hall Station resulted in 15 casualties, bringing the issue of sudden unintended acceleration (SUA) to the forefront. The driver, in his 60s, claimed sudden unintended acceleration as the cause of the accident. Each time a similar incident occurs, the question of whether SUA was involved becomes a focal point, and some cases lead to lawsuits. This two-part series sheds light on the realities, problems, and solutions related to sudden unintended acceleration lawsuits.

The reason consumers find it difficult to win sudden unintended acceleration lawsuits is that the current Product Liability Act places the primary burden of proving product defects on the consumer. According to the Product Liability Act, the victim must primarily prove ▲that the damage occurred while the product was being used normally ▲that the damage was caused by a factor within the manufacturer's substantial control ▲and that the damage would not normally occur without a defect in the product. Only then is it presumed that the product was defective, shifting the burden of proof to the manufacturer.

A "re-enactment test" to determine whether the sudden unintended acceleration of the vehicle, suspected to be caused by a defect, was involved in the death of Lee Dohyun (12 years old at the time of death) in Gangneung, Gangwon Province in December 2022, was conducted on the afternoon of April 19 on Hoesan-ro, Gangneung City. [Image source=Yonhap News]

However, given the highly technical nature of automobiles and the lack of specialized knowledge among consumers, coupled with manufacturers not disclosing related information, it is practically impossible for consumers to prove this. Although courts accept the National Forensic Service's sudden unintended acceleration analysis as key evidence in trials, its effectiveness is questioned. Since the National Forensic Service has yet to acknowledge a single case of SUA caused by vehicle defects, victims must prove the cause of the accident themselves.

According to the National Forensic Service, the number of suspected sudden unintended acceleration cases analyzed from 2019 to last year totaled 364, starting with 58 cases in 2019, 57 in 2020, 56 in 2021, 76 in 2022, and 117 last year. However, none were determined to be caused by vehicle defects. Since 2012, South Korea has mandated vehicle manufacturers to disclose Event Data Recorder (EDR) records based on amendments to the Automobile Management Act. The National Forensic Service analyzes EDR data to check vehicle speed, engine RPM, accelerator pedal displacement, brake pedal operation, and vehicle stability control system activation. Yet, most SUA analyses conclude driver error such as 'driver's lack of vehicle proficiency.' This is why EDR is criticized as a 'get-out-of-jail-free card' for automakers.

Kim Pil-su, chairman of the Automobile Sudden Unintended Acceleration Research Association and professor at Daelim University, stated, “To date, there has not been a single case where the National Forensic Service recognized sudden unintended acceleration caused by vehicle defects through their analysis. The National Forensic Service only judges whether there is a device malfunction when reviewing EDR records but does not investigate the cause. In this situation, the EDR serves not as a device for the driver but as a 'get-out-of-jail-free card' for automobile companies.”

In April, the family of Lee Do-hyun (aged 12 at the time of death), who died in the December 2022 'Gangneung sudden unintended acceleration suspected accident,' conducted a reenactment test for the first time in a domestic SUA lawsuit. This was to verify the validity of the National Forensic Service's analysis that the vehicle had no defects and that the driver misapplied the pedal. According to Lee's family and their legal representative, attorney Ha Jong-seon of Law Firm Naru, the reenactment test results showed ▲a different 'shift pattern' than the manufacturer's claim ▲significantly different 'driving data' compared to the National Forensic Service's conclusion that the vehicle had no defects ▲and a much greater 'speed change' when following the EDR record indicating 'full acceleration.' Based on these findings, they argued that 'the grandmother did not misapply the pedal, and since it was not pedal misapplication, it was sudden unintended acceleration caused by a vehicle defect.'

On December 18th of last month, a civil lawsuit related to the suspected sudden unintended acceleration accident involving Lee Dohyun (12 years old at the time of death) in December 2022 was underway. Dohyun's father, Lee Sanghoon, is urging public participation in a petition for the enactment of the "Dohyun Act" (Amendment to the Product Liability Act) in front of the Chuncheon District Court Gangneung Branch.
[Image source=Yonhap News]

Following the 'Gangneung sudden unintended acceleration suspected accident' that took his son’s life, father Lee Sang-hoon posted a petition titled 'Shift the burden of proof for defect cause in sudden unintended acceleration suspected accidents' on the National Assembly's public petition platform, which garnered 50,000 supporters. This laid the groundwork for discussions on amending the Product Liability Act, known as the 'Do-hyun Act.' Since the accident, five amendment bills to the Product Liability Act have been proposed. However, the Fair Trade Commission (FTC), the responsible ministry, has taken a cautious stance due to concerns about the impact on industry, causing repeated delays. Ultimately, the Do-hyun Act was automatically discarded with the end of the 21st National Assembly’s term without even passing the standing committee. On the 14th of last month, Lee filed the petition again in the 22nd National Assembly, and it has already met the requirement of over 50,000 supporters for petition establishment.

Previously, the FTC opposed shifting the burden of proof to manufacturers, citing the rarity of such legislation worldwide and the need to consider the burden on the entire industry. An FTC official explained, “Globally, there is no legislative precedent requiring manufacturers to prove their innocence based solely on claims of damage related to the burden of proof. If the burden of proof shifts, it could impose burdens not only on vehicle manufacturers but also on small parts manufacturers, affecting the entire industry, so thorough review is necessary.”

However, the FTC official also acknowledged, “We fully understand that consumers, as victims in sudden unintended acceleration suspected accidents, find it difficult to prove vehicle defects.” They added, “We plan to consider and promote measures such as relaxing the conditions for presuming defects or introducing a data submission order system to bridge the information gap between victims and manufacturers.” The data submission order system would require manufacturers to comply with court orders to submit data during lawsuits, similar in effect to the U.S.-style discovery system.

Nonetheless, experts point out that unless the burden of proof is fundamentally shifted, the burden on victims to prove defects will remain. Attorney Ha Jong-seon said, “Even if some conditions for presuming defects are relaxed, if the burden of proving vehicle defects still lies with the victim, little will change.” He also criticized the proposed data submission order system as “imposing the burden on consumers to conduct vehicle software defect analyses that can cost billions of won.” He emphasized, “Ultimately, to solve the problem, the 22nd National Assembly must pass the Do-hyun Act at least for sudden unintended acceleration accidents.”