A few years ago, National Public Radio discussed the similarities between elevators and autonomous vehicles. (Remembering When Driverless Elevators Drew Skepticism, Morning Edition, NPR, July 31, 2015.) This discussion centered on how the automatic passenger elevator took over 50 years to become what it is today – not even a second thought about getting in and going. Originally, elevators required operators to guide the cars to the correct floor then manually open and close the doors. Mishaps happened and lawsuit arose. As time went on, automatic elevators with safety features became the norm. Yet, even after introduction of the automatic elevator, it took over 50 years for riders to get used to not having an operator in the car. There are many stories of operators remaining in the elevator simply to push the button to calm nerves and usher in a new era.
Does this sound familiar as we observe the ushering in of a new transportation era? The fear of trusting an automatic vehicle to take us from point A to B is all-consuming. Yet, the discussion of the implementation of the automatic elevator puts the AV process into perspective. Unfortunately, the law governing liability for elevator accidents remains at a heightened standard in many states. Will the courts and legislatures decide to hold AV manufacturers in the initial roll-out stages to a heightened duty of care as well? What about the buyer/operator? That is, categorizing the AV manufacturers and operators as common carriers.
Generally, the law recognizes elevator operators or owners to be common carriers. Courts in many states have held that owners or operators of elevators are considered common carriers and thus are held to a heightened duty of care; those states include California, Maryland, Washington, Alabama, Ohio, Illinois, Pennsylvania, Nevada, Wisconsin, Nebraska, Indiana, Utah, and Virginia.
As a common carrier, owners and operators must exercise a particularly high level of care in order to have the elevator work properly. In Treadwell v. Whittier, the California Supreme Court held that the owner or operator of an elevator or escalator is a common carrier and therefore has a duty to use the “utmost care and diligence” in operating and maintaining the elevator or escalator. (Treadwell v. Whittier (1889) 80 Cal. 574.) The court emphasized:
“[p]ersons who are lifted by elevators are subjected to great risks to life and limb. They are hoisted vertically, and are unable, in case of the breaking of the machinery, to help themselves. The person running such elevator must be held to undertake to raise such persons safely, as far as human care and foresight will go. The law holds him to the utmost care and diligence of very cautious persons, and responsible for the slightest neglect.” (Id.)
One can hear this sort of remark made about the use of an AV vehicle. The operator and the passengers are risking life and limb by allowing a vehicle to control the manner and mode of transportation. The operators may not be able to do much to avoid an accident without shutting the car down or breaking something. It seems reasonable that an AV manufacturer could be held to the heightened standard of care when their vehicle contains proprietary algorithms that support the transport of the passengers from A to B.
And could the operator be held to a higher standard by failing to be diligent while operating the AV? That would seem counteractive to the point of an AV, i.e., sit back and relax. The difference here is whether the operator is truly in control of the AV. How much control will it take for a driver of an AV to be considered a common carrier? Would that duty only arise when passengers are on board? Those passengers are in the care of the operator and the choice of how much control to give the AV.
Moreover, if non-AV vehicles are still available, then a buyer has chosen to accept the good and the bad of this new technology. The buyer could be in the same pot with the manufacturer in that elevator owners or operators are generally charged with the duty to repair and maintain an elevator and to keep it in a functioning condition. The owner or operator are required to make routine inspections of the elevator and its respective components. These inspections must be made in order to discover whether any defects exist. Once they are charged with notice, they have a duty to make timely repairs. If repairs are not coordinated in a timely fashion, they may be held liable for negligence. Courts have held that this duty is not delegable. In other words, they cannot contract out of this duty and when they fail to properly maintain it, they will be held liable.
System updates will be an ongoing process. Motherboards and circuitry will be upgrade over time. If the owner/operator fails to bring in the car for routine updates and maintenance, failure to do so could be the cause of an accident. How much control over the AV will the manufacturer need to retain to ensure that all updates are made timely and properly? The AV manufacturer would not be able to delegate the duty to update and repair. Manufacturers may need to interview the buyer.
Elevators do not seem all that dangerous to us. How long until we feel the same about the AV? Will it require the courts to hold the manufacturer and the owner to a higher standard while until AV is second nature to us all? Only time will tell.