Self-Driving Cars and Liability

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Soon, self-driving cars will start making their way onto roadways across the world. The first wave of autonomous vehicles is expected to enter the market for consumers by 2020 (Stoll, John D., GM Executive Credits Silicon Valley for Accelerating Development of Self-Driving Cars, The Wall Street Journal, May 10, 2016). But as these vehicles become widespread and accidents inevitably occur, the traditional system for compensating those injured in accidents must change to consider who is liable.

Legal Framework

Determining liability for self-driving cars starts with the design of the vehicle. Manufacturers disagree on the level of human involvement these vehicles should retain. Google believes the safest approach is no human involvement because human error accidents (Fung, Brian, Google’s driverless cars are now legally the same as a human driver, Washington Post, Feb. 10,
2016). Tesla has taken the opposite approach, requiring the driver remain fully engaged (The Tesla Team, A Tragic Loss, June 30, 2016). But self-driving cars can cause collisions even without human error. In March 2016, Tesla reported its first autonomous driving fatality. A driver collided with a semi-truck after the car’s sensors failed to detect the white reflection of the truck against the sky (Id.). Even though Tesla announced the accident as a statistical inevitability, the question remains: who is responsible when these systems inevitably fail?

Currently, drivers and vehicle owners are generally held liable with insurers paying the claims. But self-driving cars involve numerous other potential parties and can change a simple negligence action into a complex product liability claim. Strict product liability would provide some clarity for liability, but would be costly because of expert testimony. Only the most catastrophic cases would effective to bring, denying access to the civil justice system for smaller cases where the costs of litigating exceed the damages. Even without considering costs, additional defendants add complexity. For example, a percentage of fault may be assigned to an inattentive driver, the designer of the program that failed, and the manufacturer of the vehicle itself. The current system lacks a clear way to apportion that fault.

Possible Solutions

One solution would be through regulations. The National Highway Traffic Safety Administration is actively involved in the development and adoption of safe vehicle automation and plans to propose guidance on establishing principles of safe operation of fully autonomous vehicles in mid-2016 (Iozzio, Corinne, Who’s Responsible When A Self-Driving Car Crashes?, Scientific American, May 1, 2016). Some states have also proposed legislation, but this may lead to a piecemeal strategy that would leave important questions of liability unanswered.

The simplest solution would be to hold manufacturers strictly liable, which, surprisingly, some manufacturers support. Volvo, Google, and Mercedes-Benz have all pledged to accept liability if their vehicles cause an accident. Volvo claims the system will contain so many backup systems that human intervention should never been needed (Id.). However, not all manufacturers agree, particularly with vehicles that depend on human intervention.

Benefits of Self-Driving Cars

Without clear answers, consumers are hesitant about this new technology. 88% of adults worry about driverless cars and 52% fear hackers could gain control (Seapine Software, Study Finds 88 Percent of Adults Would Be Worried about Riding in a Driverless Car, Feb. 3, 2014). However, the technology can make recalls and safety improvement campaigns more effective, improve traffic conditions, and provide better mobility. In addition, self-driving cars will be safer. Virginia Tech Transportation Institute researchers determined that the national crash rate of 4.2 accidents per million miles is higher than the 3.2 crashes per million miles of self-driving cars (Virginia Tech Transportation Institute, Automated Vehicle Crash Rate Comparison Using Naturalistic Data, Jan. 8, 2016). Autonomous cars also have lower rates of the most-severe crashes (Id.). With an appropriate legal framework in place that maintains access to the courts for injured victims, consumers will likely develop the confidence to use this new technology.

ABOUT THE AUTHOR: Wayne Cohen and Nicole Schneider
Wayne Cohen is professor of trial skills at the George Washington University School of law and the Managing Partner of Cohen & Cohen, P.C. Nicole Schneider is a graduate of Tulane Law School and a litigation associate at Cohen & Cohen, P.C.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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