Copyright (c) 2026 David Ellister Zamora-Smith
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This essay addresses Artificial Intelligence (AI): its brief historical context, its essential notion, and the intrinsic lack of conceptual precision. We also refer to the development risk, a legal doctrine that seeks to assign liability to economic operators for damages caused by products placed on the market whose defects were undetectable according to the state of science and technology. Likewise, we refer to the scientific advance exception, which purports to be an excuse for not assigning liability for the harmful effect of an automated system product, claiming a supposed break in the causal link. The damage caused by an intelligent system leads us to question whether the development risk theory would be applicable in cases where the effects could not be foreseen. To contextualize the discussion, we will review some European Union regulations, examining how AI systems have been classified according to their risk level. Finally, this work seeks to identify whether the development risk is a viable solution mechanism for civil liability arising from the use of artificial intelligence, serving as both a solution and a legal foundation, given the insufficient legislation that fails to eliminate the excuse of technological development without accountability.
