In December, a Tesla Model X owner in California sued Tesla over what he claims was a sudden acceleration caused by his all-electric SUV. He seeks to turn the suit into a class action citing several other instances of sudden acceleration in Tesla’s vehicles – something we covered extensively and we concluded that the evidence points toward pedal misapplication, including in one particular case where the logs were reviewed by a third-party.

They seem to be shifting the approach of the suit toward accepting that the sudden acceleration events are due to pedal misapplication, but they claim that it is Tesla’s fault for not preventing them. The company has now asked the court to dismiss the claims.

Law360 reported on the request yesterday:

“Tesla Motors Inc. on Friday told a California federal court to dismiss about half of a proposed class action accusing the automaker of building cars that are prone to sudden and unintended acceleration, saying the consumers’ warranty claims are baseless because they deal with a design defect that’s not covered by warranty.”

The owner of the Model X who initiated the lawsuit, Son Ji-chang, a celebrity in South Korea, launched a media campaign to discredit Tesla after filing the lawsuit.

He hired Richard McCune of McCune Wright Arevalo LLP, whose firm was the first to file a class action during the Toyota’s 2009 sudden acceleration claims. The attorney is drawing parallels with this case against Tesla and Toyota’s $1.6B settlement.

In Toyota’s case, the Department of Transportation “concluded that, other than a number of incidents caused by accelerators hanging up on incorrectly fitted floor mats, the accidents were mostly caused by drivers using the wrong pedal.”

Tesla hasn’t been accused of such problems in its vehicles, but they are attempting to show that Tesla’s Automatic Emergency Braking system should have prevented those accidents – despite not being the purpose of the feature.

The company argues that it is under no obligation to create a “failsafe car”:

“According to Plaintiffs, the purported defect is that Tesla’s vehicles are allegedly prone to sudden, unintended acceleration. Plaintiffs allege that the sudden acceleration may be caused by defects in various vehicle systems or by driver negligence, but that, in any event, Tesla should have designed a failsafe system to prevent it. Tesla contends that each sudden acceleration incident alleged in the FAC (First Amended Complaint) was the result of driver error, denies that its cars are defective in any way, and disputes that there is a legal duty to design a failsafe car.”

They are trying to, but it’s difficult to create a system that would cut torque against the apparent driver’s wish to apply it due to the accelerator being pressed.

It’s technically possible, but they can only do it if there’s no doubt that it’s not what the driver wanted. They wrote about the issue:

“For example, the vehicle will cut motor torque in cases where the accelerator pedal and the brake pedal are simultaneously pressed. Furthermore, current Tesla software uses the Autopilot sensor suite to distinguish potential pedal misapplication events from normal cases when a driver intentionally presses the accelerator pedal. In cases of unambiguous pedal misapplication, the vehicle cuts torque to mitigate the effects of the driver’s error.”

The next step in the lawsuit will be on May 1st at the Santa Ana federal court.