autonomous vehicle with navigation sensor and sateliteIntroduction:

The future has, in many people’s minds, always included the idea of a car that can drive itself, and that future has arrived. As with any new technology, there are legal questions that often arise, in part because technological advances often outpace the speed of legislation. Legal analysts have raised concerns about how and where liability should be apportioned with autonomous vehicles. This article examines those concerns and addresses the legal questions involved with respect to driverless cars.

Discussion:

The first fully autonomous vehicles were tested and designed between approximately 2005-2012, although the idea itself is over 100 years old, and there have been partially-autonomous cars for decades (such as cars equipped with the cruise control feature). See, e.g., Dan Neil, “Who’s Behind the Wheel? Nobody.,” The Wall Street Journal, Sep. 24, 2012. In 2015, those vehicles were perfected enough to cause the American Bar Association (ABA) to address self-driving cars and the potential, complex legal issues to its readers. See American Bar Association, “Are we there yet? The legal aspects of driverless cars,” Oct. 2015, at http://www.americanbar.org/publications/youraba/2015/october-2015/are-we-there-yet–the-legal-aspects-of-driverless-cars.html (last visited Feb. 8, 2017). The matters addressed were myriad, and lawmakers, attorneys, and expert witnesses will all play an important role in grappling with the legal issues surrounding autonomous vehicles.

Part of the reason driverless automobiles are of such import is because their development could mean that all or nearly all vehicles on our highways and byways would, in fact, be driverless, and many liability questions arise. As the ABA expressed, “Stephen Wu, of counsel at the Silicon Valley Law Group and one of the founding members of SciTech Artificial Intelligence and Robotics Committee, said, ‘“Right now we stand on the precipice of a change in transportation technology that we haven’t seen since the transition from the horse and buggy to the automobile.” Id.

As the ABA has pointed out, there are indeed benefits to autonomous vehicles: unlike human drivers, they cannot fall asleep or risk becoming intoxicated, nor can such vehicles get distracted by things like cell phone calls or a radio broadcast. See id. Moreover, such automobiles will be life-saving. As their error rates will be dependent on complex algorithms, they will be equipped with automatic “stop” features, and their sensors and detection abilities are greater than those of most, if not all, human beings’.  See id. Finally, driverless cars have other benefits, including “increased mobility for the elderly, disabled and for people who can’t currently drive.[Another expert]  also pointed out other benefits, such as reduced fuel consumption, greenhouse gas emission reductions, better land use in cities by the elimination of parking garages, convenience and saving time.” Id.

However, self-driving vehicles are not perfect, and although they are intended and “are being designed to save lives with many safety features, there are also legal aspects to consider.” Id.  Some of those issues are listed below:

(1). Product Liability Concerns: After the ABA asked a number of autonomous vehicle experts in scientific and legal fields, they reported that “according to the panelists, inevitably driverless cars will crash and the issue of product liability will be a concern.” Id. Product liability lawsuits are premised on the idea that a manufacturer, such as an automaker, put a defective and/or dangerous product on the market and in the hands of consumers. See e.g., Restatement (Third) of Torts: Products Liability, § 19 (May 1997). In a product liability lawsuit, one of the key elements that a party must prove or disprove involves causation, which typically necessitates expert witness testimony. Experts in the field of product liability will be vital, as will automobile design experts, engineering experts, and experts on what a prudent party would customarily do with respect to a particular product (in this case, an autonomous vehicle). An example the ABA gave of how a product liability lawsuit might arise was compelling: because such vehicles do not have brains, they might not know to stop or slow down if a child in their path was playing ball in the street. See ABA, supra. In contrast, a human with a brain and those decision-making abilities would know enough to discern the danger and stop their car from hitting a child in that situation. See, e.g., id. One analyst attempted to explain the complexities with product liability litigation and self-driving vehicles: “As new technologies emerge, product liability and accident compensation have been handled traditionally through a variety of legal mechanisms, including: strict liability, negligence, design-defects law, failure to warn, breach of warranty, and so on. In fact, that’s essentially what happened a century ago with the rise of the old-fashioned automobile. Generally speaking, we should let these new liability norms evolve freely as intelligent-vehicle and driverless-car technologies become more ubiquitous. When crashes occur, courts can assign liability to those parties with the greatest knowledge and control over these systems, which will increasingly be the firms that manufacture or operate robotic cars.” Adam Thierer, “When the Trial Lawyers Come for the Robot Cars,” Slate, Jun. 10, 2016, at http://www.slate.com/articles/technology/future_tense/2016/06/if_a_driverless_car_crashes_who_is_liable.html (last visited Feb. 8, 2017).

(2). Liability Questions: One issue that will undoubtedly arise is who should be found to be liable, in the event that a party can successfully establish the fault of a driverless automobile. There are at least three potential defendants who could face litigation: the car manufacturers, insurance companies, and federal and state (perhaps even local) governments. Certainly, manufacturers will be hit hard by lawsuits that arise out of such issues, but they are by no means alone, and they may be able to do a few things in their defense, such as utilizing Rule 14 of the Federal Rules of Civil Procedure (FRCP), or by defeating a product liability claim, thereby forcing plaintiffs to pursue action against other parties. See, e.g., FRCP Rule 14(a), Dec. 1, 2016, available at http://www.uscourts.gov/sites/default/files/rules-of-civil-procedure.pdf (last visited Feb. 8, 2017).

Rule 14 of the FRCP permits a defendant to rely upon impleader and bring a third party into the lawsuit as an additional defendant. See id. This rule may or may not eliminate a particular defendant’s liability, but it can, at a minimum, force that liability to be apportioned so that that defendant does not bear all of the financial and/or other responsibility if they are found guilty. Additionally, defendants may simply defeat a claim, outright, in which case, a plaintiff’s recourse would be to seek out a different defendant. Manufacturers of autonomous vehicles would do well to invest in high quality insurance plans, as this may help protect them from the liability of a direct lawsuit. See, e.g., Adam Thierer, supra. In such instances, expert witnesses will again prove indispensable, particularly those who specialize in insurance claims, actuaries, and the like.

The cases that will invariably arise with respect to self-driving cars may also involve lawsuits against federal, state, or even local governments, as plaintiffs may argue that a particular government had a duty to regulate autonomous vehicles and that it neglected that duty. In such cases, expert witnesses will also play an important role. For example, experts on policy-making, regulatory issues, and again, causation will be extremely valuable. Product liability experts, statisticians, and actuaries may also be of great utility. Both plaintiffs and defendants will find that experts will be the ones to provide guidance to courts, given that there is a lack of legislation on the legal questions surrounding driverless vehicles.

(3). Limiting Liability: As one analyst noted, “Traditionally, we’ve all owned or leased our vehicles and been in complete control of them at all times. But the car of the future is more likely to be an amalgam of Tesla, Uber, and Zipcar: a fleet of robot cars that are just sitting out there waiting for us to hail them for a ride. As cars become more of a service than a final good, liability will rapidly shift to the owner of the fleet of cars and away from end users. But if all the liability falls on the manufacturer or fleet owners of driverless cars, there’s one big pitfall with this approach. America’s legal system lacks a “loser-pays” rule—i.e., the party who loses the case covers the other party’s legal fees—which means a perverse incentive exists to file potentially frivolous lawsuits at the first sign of any trouble. If enough lawsuits start flying, it could seriously undermine this potentially unprecedented public health success story.”  Id. In other words, courts and lawmakers will need to consider exactly how much weight a given lawsuit should carry, in addition to whether or not such a claim is itself legitimate or frivolous. It is to be expected that litigation over driverless cars will be profuse, but it is uncertain exactly what form each case will take. The courts will need to decide how to balance the benefits versus the risks of such vehicles. With respect to cost-benefit analysis, adjudicators will likely require expert guidance. The types of expert witnesses who might be involved in helping to make these calculations include those who specialize in the auto industry, actuaries, statistics experts, and even experts on financial and safety matters. Product liability experts may also prove to be helpful in assessing and weighing advantages versus risks.

One additional question that judges and juries will likely be faced with is the issue of whether a person riding in such a vehicle would bear any responsibility for an alleged harm. Although autonomous vehicles can technically function independently, that doesn’t mean they always will.  For example, a passenger may be able to change the settings of a self-driving car, thereby telling the car what to do. In such cases, if an accident occurs, the passenger who acted as a “partial driver” may bear some or even all of the legal responsibility, depending upon the circumstances. This phenomenon gives a new name to the term “backseat driver,” as individuals may be able to literally help “drive” the autonomous vehicle and, in so doing, may cause harms for which they are liable. Such cases will also involve expert witnesses, as specialists in the aforementioned fields may be able to apportion blame from a legal perspective. One type of individual who would be invaluable in such cases would be an accident reconstruction expert witness.

The bottom line in cases that fall under the heading of liability limitations is that “it may be necessary to limit liability in some fashion to avoid the chilling effect that excessive litigation can have on life-enriching innovation. But we’ll still need to deal with the handful of accidents that happen.” Id.

Conclusion: There are many different types of lawsuits that may arise once self-driving vehicles become mass produced and sold, and it can be difficult to predict each kind. However, the aforementioned cases will likely be a factor in what legal issues will be raised with respect to autonomous cars. No matter what kind of case ends up being addressed, expert witnesses will be indispensable to provide advice, guidance, and testimony to every potential litigant, and their value cannot be overstated. Until and unless the laws can catch up to the technology, these experts may hold the key to what takes place in a courtroom.

By: Kat S. Hatziavramidis, Attorney-at-Law