Which is exactly what this case is claiming, that the software is defective.
And what happens when we progress beyond Level 2 or 3 automation? Then the car is making choices for the driver, choices the driver may not have any say in or realistically be capable of reacting to in an emergency?
Deferring responsibility to the driver under any scenario is a cop-out. We have a long history of engineering qualifications and regulations to ensure safety of the populace, engineers and architects design structures to be safe, plumbers have to plumb to code, heck even cars themselves have a mile long list of compliance requirements. All to ensure the thing that companies build aren’t killing the population, and when they do someone is responsible.
Yet as soon as we start talking about software, “not my problem dawg.”.
The same way the first man did.