Analyzing the Future of Driverless Cars

Author: Pamela Chalk

Guest Editor: Brittany Torrence

October 12, 2018 2:00pm

Driverless vehicles, a.k.a. autonomous vehicles (“AV”), offer the enticing promise of safer roadways, the freedom to work or do other tasks while commuting to and from work, less road rage incidents, and a reduction in traffic congestion.

In 2017, over 37,000 people died in accidents on America’s roads according to the National Highway Traffic Safety Administration, up sharply from 32,479 in 2011, and far worse per capita than anywhere else in the Western hemisphere. The United States has 10 of the 25 most congested cities in the world, according to the Inrix transportation intelligence group.

As AV technology advances, novel legal issues will continue to arise. One of the issues will be determining the legal responsibility for driverless car crashes. Currently, when a car accident occurs, drivers are primarily sued, though manufacturers and the government may face liability as well depending upon the circumstances. Such circumstances are usually fairly clear cut and drivers tend to be the primary parties held responsible when an accident caused by negligence occurs.

However, it easy to see that in the future, AV technology will cause a great shift in the landscape of car accident liability to manufacturers and, potentially to local and state governments.  With AV technology, drivers essentially become passengers as control over the operation of a driverless car is essentially relinquished to the vehicle. The more control given to a vehicle, the increased likelihood that manufacturers will face increased liability for car accidents.

In the wake of change, the question becomes who should bare the primary responsibility when a driverless car accident occurs.  If one is a mere passenger in a car being driven, just as in a bus or a taxi, then courts must determine the AV maker or the government should take on a greater role in the realm of responsibility.

Matters of liability may become very murky as legal questions will undoubtedly arise as to exactly how liability should be attributed when a driverless car accident occurs. Some will argue that manufacturers are to blame as it is their products that caused the accident. Others may argue that it is the driver that caused the accident, as it is their property that caused the accident or that their interaction with hardware and software contributed or caused an accident. Still others may allege the government should be held accountable for such incidents because of a lack of regulations or roadways equipped to accommodate AV technology and protect its citizens as the use of such technology increases.

Recent driverless car crashes show that there is a long road ahead in terms of perfecting AV technology and that car accidents will not be eliminated as driverless cars are used more on our roadways.  Car accident occurrences will just evolve as AV technology evolves. In May 2016, a Tesla Model S in autopilot steered into a large truck crossing a northern Florida highway, also killing the driver.  In March, 2018, a Tesla Model X in “autopilot” mode—in which it can maintain its lane, change lanes, speed up or slow down, and brake—veered at high speed into a barrier on a Mountain View, California, highway, killing the driver. In the same month, an AV prototype SUV in autonomous mode, with a human driver in the front seat, hit a pedestrian in Tempe, Arizona, killing her. All of these accidents have caused new questions about liability and who is to blame when a driverless car crash occurs.

So, what will the future of litigation look like for AV accidents? the answer is complicated.  Not only will questions arise as to whether manufacturers should be held to blame for driverless accidents, but also questions will arise regarding whether local or state governments be held responsible for not providing adequate regulation, roadways, or AV technology friendly highways will also emerge as potential legal questions.

Currently, there is very little case law regarding AV technology litigation, but there are some early indications of where things may be headed in the future.  For example, in January of 2018, Oscar Nilsson filed a lawsuit against General Motors Company in the Northern District of California claiming that the he was hit by a self-driving vehicle, a Chevrolet Bolt, which was operating in autonomous mode with a backup driver behind the steering wheel. Nilsson v. General Motors, U.S. District Court, Northern District of California, Case Number 3:18-cv-00471.

According to the Complaint, the driver had engaged the self-driving mode and his hands were not on the car’s steering wheel when the accident occurred. Mr. Nilsson claims he was riding behind the Bolt when it suddenly veered back into Mr. Nilsson’s lane, striking Mr. Nilsson and knocking him to the ground. The Complaint alleges that General Motors was negligent and thereby responsible for the crash because “Defendant owed Plaintiff a duty of care in having its Self-Driving Vehicle operate in a manner in which it obeys the traffic laws and regulations” but that duty of care was breached when the “Self-Driving Vehicle drove in such a negligent manner that it veered into an adjacent lane of traffic without regard for a passing motorist, striking Mr. Nilsson and knocking him to the ground.”

Mr. Nilsson is claiming the manufacturer, General Motors, and not the driver, was responsible for the accident because the car was in autonomous mode and the driver was not controlling the vehicle at the time of the accident. General Motors answered the Complaint, and very interestingly, did not deny that the car was in driverless mode or that an accident occurred. Instead, they placed the fault of the accident on Mr. Nilsson by alleging he ran into the Bolt. Rather, most interestingly was the statement in General Motors answer: General Motors “admits that the Bolt was required to use reasonable care when driving…”

Ultimately, the case was settled and dismissed in June, 2018. However, the admission by General Motors that its driverless Bolt had a “duty of reasonable care when driving” brings up new issues as who has the ultimate duty of care when it comes to autonomous vehicles on the road and whether a car in driverless mode can have such a duty.

Some of the legal landscape may depend on the state and federal regulation that will inevitability come to pass as the advent of this technology increases.  AV technology and vehicle design alone will not alone lie at the heart of AV litigation, road design and traffic laws will also play a part.

For example, under the general rules of almost any road, the March, 2018 Tempe crash was the fault of the vehicle. Yet, the driver may have been distracted. Police reports indicate she was streaming the television show “The Voice” on her phone and looking downward just before the driverless car she was in fatally struck a pedestrian. She never tried to intercede even as the car neared the pedestrian that was killed. So, should the driver be held responsible under those circumstances? Did she have a duty to take over control of the driverless vehicle before the accident happened? Some would answer in the affirmative. Others have also pointed to the poor design of the road, the narrow sidewalk the pedestrian was walking on, the lack of crosswalks or bike lanes, and the high speed limit as additional, just as compelling causes of the crash, suggesting that the government and its unpreparedness for AV technology are just as much to blame. Local, state, and federal governments may soon be dragged into AV technology litigation as arguments could be made that the lack of AV friendly roadways and regulation contribute just as much if not more to driverless car crashes.

There are different state approaches to regulation of new AV technology, showing the government is still unsure how to handle AV technology on America’s roads. New York and Massachusetts have taken more conservative approaches to driverless car testing and use on roadways in their respective states. California has taken a much looser approach. Arizona, however, has tightened its regulations since the first ever pedestrian death by autonomous vehicle occurred in that state and has a much higher tolerance for motor vehicle deaths.

One regulatory dispute has already emerged revealing how complicated the legalities surrounding AV technology are. The federal government regulates automobiles’ physical safety design, but state governments, through their department of motor vehicles, regulate who can drive cars. However, driverless cars alter this longstanding status quo and raises new questions about jurisdiction, as well as regulation. A bill languishing in Congress, called AV Start, would resolve this issue in Washington’s favor.

The American Vision for Safer Transportation through Advancement of Revolutionary Technologies (AV START) Act (S 1885) establishes regulations for the development of highly automated vehicle (HAV) technologies. The 22 sections included in the AV START Act regulate the testing, commerce, and safety of HAVs by appointing committees, working groups, and expert panels to research related policy, technology, and social issues, establishing reporting requirements for manufacturers, and initiating new consumer education programs. The Act puts in motion research efforts that will identify portions of the existing Federal Motor Vehicle Safety Standards that will need to be updated to apply to vehicles driven by automation instead of a human driver. The bill further prohibits state and local governments from regulating the design, construction, or performance standards of ADS and HAV systems and components, but otherwise maintains the jurisdiction of the National Highway Traffic Safety Administration (NHTSA) and states.

Generally, the AV Start consolidates decision-making power regarding the regulation of highly automated vehicles at the federal level. Critics reported that state and local governments will be diminished under the legislation, should it pass. Despite the federal government’s prominent role, the legislation prohibits the U.S. Department of Transportation from setting standards related to data collection for three years and gives a technical working committee five years to develop policies and standards related to automated vehicles.

Whatever happens with AV Start, state and local governments will still have to face new challenges on how to protect the safety of their citizens while also preparing for the advent of driverless roads on their streets.  Manufacturers will also face challenges and legal questions as their role in potential liability for driverless car crashes.  Those that ride in autonomous cars will also face issues as to whether they have the same level of responsibility for what happens with their vehicles as they head out onto the road.

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