Credit: Tesla
With every passing day, we become closer and closer to a reality where autonomous vehicles completely change how we look at commuting and transporting goods. This foreign reality poses an abundance of unanswered questions that will change our outlook as attorneys on liability issues, traffic laws, and insurance for traffic go-ers across all states.
Since 2015, companies like Tesla have produced a line of partial self-driving consumer cars. Self-driving vehicles are created using a host of ultrasonic sensors, sophisticated software, and instructional algorithms that “tell” the vehicle to accelerate, brake, and steer. The primary auto safety regulatory that oversees this emerging technology is the National Highway Traffic Safety Administration. To date, the NHTSA has investigated Autopilot after becoming aware of 35 crashes involving Tesla’s system, including nine that resulted in 14 deaths.
Making Autonomous Commercialized
Companies at the forefront of autonomous cars have a few goals in mind in commercializing the tech: decreasing cost, efficiency, and safety. Startups and established companies alike are racing to develop the first autonomous semi — and prove superior among the rest. Solo, Embark, Tesla, Convoy, TuSimple, Knight-Swift and many other emerging companies are fighting for market share in this multi-billion dollar industry. For example, less than a month ago, Outrider, a new startup on the scene announced that it has raised $191 million to date.
However, if and when they accomplish the goal of becoming completely autonomous, it would completely wipe out a thriving workforce. According to the US Census, there are more than 3.5 million truckers in the U.S. Once their trucks go autonomous, they will be completely replaced and out of work. Oren Etzioni, the CEO of the Allen Institute for AI has touched on this topic saying “Sooner or later, the U.S. will face mounting job losses due to advances in automation, artificial intelligence, and robotics.”
Liability and Insurance Issues
Other than massive job loss, a huge question mark for this emerging industry is liability. Some states, like Arizona, have enacted legislation to address liability of autonomous vehicles. For example, Arizona law considers the “driver” to be the operating system of the autonomous vehicle. The law nevertheless assigns liability to the owner for any traffic violations. This poses the legal question of whether the owner should be responsible for the negligence of the “driver.”
In torts, the chain of causation is crucial in determining who is liable in a personal injury lawsuit. Many principles of torts could no longer be used in an autonomous vehicle accident scenario. For example, if an accident were to occur between an autonomous semi and a human driver, how would you prove the negligence of an AI? An even more nebulous question arises when thinking of the outcome of two autonomous vehicles colliding. Duty of care is an essential element in establishing negligence, but would it even be possible to prove that an autonomous vehicle acted without duty of care when the vehicle's algorithm is designed for safety? Because of these complex questions, lawyers have begun to argue that liability should shift from the owner to the manufacturer.
As this shift becomes more probable, insurance companies will likely be forced to restructure their coverage and liability models. Historically, disputes involving on-road accidents are based on the collection of testimony and evidence to identify which driver should be liable. However, if the “driver” is considered the autonomous-operating system, insurance companies will likely need to shift their focus to rely on evidence from the manufacturer rather than information from the “owner” involved in the accident. This can impact both insurability and the cost of coverage. Moreover, this new definition of “driver” will also likely impact liability considerations and make manufacturers of autonomous vehicles necessary parties to every dispute involving on-road accidents. In answering these difficult questions, we can see some foreshadowing by looking at litigation between human drivers and autonomous consumer vehicles.
Recent Cases
Following the increased use of autonomous-vehicle technology, courts have begun to see a coinciding increase in disputes related to self-driving features on vehicles. In one instance, Tesla owners filed a lawsuit in federal court accusing the company of fraud, violating consumer protection laws and of false advertising. The suit asserted that the company made “misleading and deceptive statements regarding the company’s advanced driver assistance systems in connection with claims about self-driving.” Like consumer vehicles, autonomous semi lawsuits will most likely consist of suing the parent company for flaws in technology.
Several of these recent cases have highlighted the complexity of imposing liability on owners of autonomous vehicles. Owners have decreased attentiveness while driving, relying on manufacturers' claims about the safety of their product’s self-driving features. For example, in 2018, a driver struck and killed a pedestrian while operating one of Uber’s self-driving cars. It was later learned that the driver was watching The Voice on her Hulu account when the accident occurred. In 2019, a Tesla Model 3’s autopilot technology malfunctioned and led to the death of the driver. The driver did not have a hand on the steering wheel when the accident occurred. These examples illustrate that both drivers appeared to be relying on autonomous technology to safely navigate the roads, highlighting the complexity of assigning liability to the responsible party.
Manufacturers represent that their vehicles function autonomously, with the reasonable expectation that owners would rely on this representation. Yet, post-accident data strongly suggests that these accidents could have been prevented had the owners not relied entirely on the technology and had been more engaged. This raises the question – who is the responsible party?
Traditionally, the law requires every individual to act reasonably so as to prevent harm to another person or their property. This requirement extends to drivers, who have a duty to act with reasonable care while operating a vehicle. In this way, the legal system attaches liability to the individual whose negligence caused the harm. However, this is premised on the assumption that the driver is the one in control and the car is merely a vessel that responds to the driver’s commands. With the increasing use of autonomous vehicles, this “driver-centric” liability standard will have to change for courts to fairly assign blame to the responsible party. This assignment will become even more complex with completely autonomous semi-trucks.
Closing Remarks
There is no doubt that autonomous vehicles are becoming increasingly popular. With this continuing trend, the law will be required to adjust to the legal implications that arise with this new technology. Autonomous vehicles have the potential to provide society with great social benefits like increased safety and efficiency. Yet, to adequately prepare for this prospect, our legal system must foresee the malfunctions that may arise and anticipate ways to mitigate harm and assign liability.
*The views expressed in this article do not represent the views of Santa Clara University.