Whom to Sue When There is Nobody Behind the Wheel
The march of the so-called autonomous vehicles is on, in case you haven’t noticed. It started with driver adaptive functions that help control things like parking and stopping your car for you before you get too close to an object. The issue has already been in public discussion for a while: What do you do when computer-driven vehicle plows into the rear of your new car? A recent study by the Brookings Institution researched just this question.
Seem like science fiction? Not really. As technology improves vehicles, a logical step in engineering evolution is to take the driver out of the equation. After all, drivers are the single largest causal factor in auto accidents ranking substantially higher than vehicle defects and road surface problems.
And make no mistake, autonomous vehicles are coming to a road, street or highway near you very soon. Estimates vary from about three years (developer Elon Musk) to ten years (U.S. Department of Transportation Secretary) for these vehicles to be sharing the road with us human drivers.
On the one hand, there has never been a legal or regulatory challenge like autonomous cars since the beginning of the automobile. Is there cause for concern? Sure. On the other hand, the common law demonstrates its flexibility and logic time and time again as it did when steam engines where invented in England and “horseless carriages” where introduced onto the streets of the United States.
Let’s give lawyers some credit. (It’s easy enough to find lots of blame). Lawyers and regulators are good at likening legal issues which arise from new technology to older technology and prior problems. By logical extensions, a new and effective set of laws can and will be implemented for this exciting new technology. Before going on, let’s define the issues, which are posed:
Regulatory, i.e. whether the state, local or federal governments which control highways and automobiles will even allow general use of these new technologies; and
Civil liability, i.e., If they are to be allowed and an inevitable accident occurs, who would be liable for the resulting damages.
A great deal has been invested in the invention of the autonomous car, and it appears that we are past a tipping point. With the addition of regulatory approvals and infrastructure upgrade, we will see them on our streets soon. The main regulatory hurdle is a direct vestige of American federalism: up until now, mundane operations like automobile regulation where delegated to each state’s division of motor vehicles. Consequently, each state has its own authority. Each may decide whether it wishes to join a list of other states which permit AV’s. The obvious solution is for AV’s to be regulated at the federal level. While the states would strongly object, it seems clear that the technology, the infrastructure---and laws---need to be uniform for such a revolutionary product.
The promise of autonomous cars is enormous. Autonomous cars will be more widely available for individuals (like senior citizens) who do not routinely drive. It will benefit Medicare, Medicaid and other forms of medical transportation (no driver will be required). Previously, home-bound patients may recover a sense of independence and become able to use a fleet of time-share autonomous vehicles circulating about town and looking to transport them (ala Uber).
The advantages certainly suggest that proponents of AV’s will have lots of leverage against those who object.
Let’s imagine our first autonomous accident. Autonomous vehicle 1 is proceeding through an intersection on a red light, but the weather is bad, raising a question as to whether the vehicle should have been able to detect a red light. The other vehicle enters the intersection on a green light. The vehicle sensed the oncoming threat but was late in applying its brakes. As a result, the accident was quite violent and serious injuries occur. With thousands of dollars of medicals and repair bills, who owes?
In the brave new world of autonomous vehicles, the answer will not be simple. A new body of law must be constructed which is different in many respects from routine personal injury law. The new area of law will likely draw on products liability. Products liability law focuses on a number of areas such as negligent design, breach of warranty and failing to warn. In our scenario above, the AV company’s failure to design a sensor which would pick up red lights even in bad weather would arguably constitute a breach of the duty of merchantability, implied warranty, etc.
The problems with products liability law, however, are significant. Many lawyers try to avoid these cases because they revolve around highly specialized expert testimony (typically engineering testimony). The testing and consulting costs can be huge, and at the end of the day, the manufacturer may be able to provide more engineers and consultants than the average plaintiff can afford to retain. The law will have to be careful that each fender bender involving an AV does not turn into an expensive federal case.
I am excited that technology is making things safer for us. Even if AV’s reduce motor vehicle accident mortality by ten percent, the effects would be huge. Stopping texting would help out nearly as much. The overall effect on accident survivability would be truly significant.
Autonomous vehicles are fascinating, and regardless of how you feel about a driverless car’s potential for success, they are here to stay. Here’s hoping that the combined efforts of some smart lawyers, ethical legislatures and a dose of common sense will help us craft a fair set of laws which allow the industry to pursue this fascinating technology in a way which is safe as it can possibly be.