These are boom times for driverless car research. Google, the major automakers, and government agencies both in the U.S. and abroad are spending millions of dollars to support the development of vehicle-automation technology with the potential to make road travel far safer than it is today. But what will happen when automation is suspected of causing, as opposed to avoiding, an accident?
This won't be a simple problem. How do you apportion blame between a human driver and a car's automated systems? How do you apportion blame within those systems? Was it the software? Or the way the software was or wasn't tested? Or maybe it was the hardware. Or perhaps it was due to the software and hardware interacting in unforeseen ways.
How do you apportion blame between a human driver and a car's automated systems?
These sorts of head-scratchers have led to suggestions that liability concerns might become a major impediment to the rollout of advanced autonomous vehicle technologies.
An article last year in the San Diego Union-Tribune observed that, according to "experts," "the issue of liability, if not solved, could delay or even wipe out the vision of driverless cars gaining widespread consumer use." MSN ran a story under the title "Will lawsuits kill the autonomous car?" and the Wall Street Journal published an article titled "Liability Issues Create Potholes on the Road to Driverless Cars."
Present Products Liability law might give us some insight as to the potential target defendants. Typically, any entity within the chain of commerce is a potential defendant. This is typically the manufacturer and distributor, but can also be the maker of component parts, or in this case, software.
Products liability claims already exist in the motor vehicle industry, such as defective airbags, seatbelts, tires, crashworthiness (the ability of the vehicle itself to hold its form and protect its occupants in severe crashes), etc. These cases are very expensive to pursue from a plaintiff’s point of view, given that many potential target defendants may be foreign corporations and proving negligent design or manufacture often requires the involvement of many highly specialized experts. Product failures of this nature often cause catastrophic injuries.
Also, these prospective issues, while not easy to prove, are at least easy to identify. An airbag does not deploy despite a high speed frontal impact. A seatbelt tears or doesn’t engage. A tire detreads.
Negligence occurs when manufacturers fail to design their products to be safe when used in reasonably foreseeable ways. Consider an autonomous steering technology that works well during the day but that tends to cause fender-benders when used at night. A person whose car is damaged as a result could assert that night driving is a reasonably foreseeable use of a vehicle, and that the manufacturer’s failure to ensure the technology worked effectively at night constitutes negligence.
Design defects are another commonly asserted theory of liability. Suppose that the software for controlling braking in an autonomous vehicle doesn’t sufficiently increase braking power when the vehicle needs to stop on a downhill slope and that vehicle collides into the rear of the vehicle ahead of it. However, if such collisions are usually due to driver negligence, how does one prove such a collision was due to a glitch in the vehicle’s automation feature, and whose burden does it become to prove?
Because of the costs, absent catastrophic injuries, I doubt plaintiffs would be keen to pursue defective products claims. In fact, I suspect that in such cases, Plaintiffs would likely still file suit only against the alleged negligent driver who would then have the burden of naming (and proving) potential product manufacturers and distributors as non-parties at fault. If the burden of proof shifts to the negligent driver, that cost essentially transfers to their liability (car insurance) carrier.
If liability carriers suddenly find themselves spending quadruple the costs (if not more) of defending injury claims by plaintiff, the ultimate effect might be that what was originally designed and touted to lower accidents and therefore lower insurance rates, might actually serve to increase insurance rates.
Buyer beware. Not all technological advances are necessarily a good thing. Sometimes, less is more.
Me, I’ll stick to my power steering and anti-lock brakes. That’s enough of an advancement for me. Oh, and look out musical downloads because vinyl is making a comeback too.