No More Road Rage: Who is Liable When an Automated Vehicle Causes an Accident?
When I, Robot premiered in 2004, audiences were riveted by a self-driving Audi that transported Will Smith’s character to his desired locations. I, Robot (20th Century Fox 2004). What seemed like science fiction in 2004 is now a reality. Automated vehicles have been roaming the streets for at least the last seven years. Associated Press, Google Founder Defends Accident Records of Self-Driving Cars, L.A. Times (June 3, 2015, 2:48 PM), http://www.latimes.com/business/la-fi-google-cars-20150603-story.html. Google claims that its self-driving cars have logged more than 1.7 million miles since their creation. Id. Tesla, BMW, Infiniti and Mercedes-Benz have joined Google in the self-driving vehicle market by releasing semi-autonomous cars that are already available for purchase. Don Sherman, Semi-Autonomous Cars Compared! Tesla Model S vs. BMW 750i, Infiniti Q50S, and Mercedes-Benz S65 AMG, Car and Driver (Feb. 2016), http://www.caranddriver.com/features/semi-autonomous-cars-compared-tesla-vs-bmw-mercedes-and-infiniti-feature.
Self-driving cars are rapidly advancing and becoming more available to the average consumer. In fact, there are estimates that by 2035, there will be 21 million autonomous vehicles on the road. Kirsten Korosec, Autonomous Car Sales Will Hit 21 Million by 2035, IHS Says, Fortune (June 7, 2016, 4:40 PM), http://fortune.com/2016/06/07/autonomous-car-sales-ihs/. Many legal questions are surfacing as self-driving vehicles are becoming more widely used. For instance, who is liable when a self-driving vehicle is involved in an automobile collision? Who is the “driver” of a fully autonomous vehicle? How is one’s car insurance policy affected when that person owns an autonomous vehicle? Many of the answers to these questions are unclear as individual states try to accommodate the emerging technology of autonomous vehicles on their roads.
II. Current Federal Approach to Addressing Autonomous Vehicles
In 2013, the National Highway Traffic Safety Administration (NHTSA) issued a “Preliminary Statement of Policy Concerning Automated Vehicles” that outlined its recommendations to state legislatures when drafting their laws concerning automated vehicles. NHTSA, Preliminary Statement of Policy Concerning Automated Vehicles (2013), https://www.nhtsa.gov/staticfiles/rulemaking/pdf/Automated_Vehicles_Policy.pdf. In that policy statement, the NHTSA recommended that states avoid authorizing the operation of self-driving vehicles for purposes other than testing. Id. at 14. The NHTSA stated that self-driving technology was not sophisticated enough to be authorized for general driving purposes. Id. However, the NHTSA indicated that if a state decided to permit the general use of autonomous vehicles, then it should require a properly licensed driver to be seated in the driver’s seat at all times, “in order to operate the vehicle in situations in which the automated technology is not able to safely control the vehicle.” Id.
In February of 2016, the NHTSA publically released a letter it sent to Google in response to Google’s proposed design for a vehicle that did not require a human driver. David Shepardson & Paul Lienert, Exclusive: In Boost to Self-Driving Cars, U.S. Tells Google Computers Can Qualify as Drivers, Reuters (Feb. 10, 2016, 1:14 PM), http://www.reuters.com/article/us-alphabet-autos-selfdriving-exclusive-idUSKCN0VJ00H. In that letter, the NHTSA stated that it would “interpret ‘driver’ in the context of Google’s described motor vehicle design as referring to the (self-driving system), and not to any of the vehicle occupants.” Id. In addition, the chief of the NHTSA declared that the administration would not attempt to stop states from implementing their own policies regarding automated vehicles. Jeff Bennett & Mike Ramsey, NHTSA Won’t Block States from Setting Their Own Rules on Self-Driving Cars, Wall Street J. (June 8, 2016, 12:35 PM), http://www.wsj.com/articles/nhtsa-wont-block-states-from-setting-their-own-rules-on-self-driving-cars-1465403738.
Aside from the policy recommendations made by the NHTSA, the federal government has not weighed in on issues of liability with regard to automated vehicles. Jeffrey R. Zohn, Note, When Robots Attack: How Should the Law Handle Self-Driving Cars that Cause Damages, 2015 U. Ill. J.L. Tech. & Pol’y 461, 472 (2015). The federal government has deferred to state legislatures to address these problems of liability. Id. at 473.
III. Current State Approaches to Addressing Autonomous Vehicles
As of 2016, only eight states and Washington, D.C. have enacted any legislation that is related to autonomous vehicles. Autonomous/Self-Driving Vehicles Legislation, Nat’l Conf. St. Legislatures (July 1, 2016), http://www.ncsl.org/research/transportation/autonomous-vehicles-legislation.aspx#Introduced. Of these states, only Michigan and Nevada have enacted legislation that relates to any form of liability in cases of collisions involving autonomous vehicles. Id. Both the Michigan and Nevada legislatures have made vehicle manufacturers immune from liability if their vehicles were modified to become autonomous by a third party. Id. In 2016, sixteen states have introduced legislation that related in some way to autonomous vehicles. Id. Therefore, states that have failed to pass legislation relating to autonomous vehicles are forced to utilize their current laws to try and settle disputes regarding this cutting edge technology.
IV. Proposed Approaches to Issues of Liability
Since the federal and state legislatures have been minimally responsive in addressing liability in collisions involving autonomous vehicles, there have been many proposals to resolve this legal issue. One proposed approach is to treat autonomous vehicles like regular automobiles. Zohn, supra, at 474. This would require utilizing manufacturing defect liability or design defect liability. Id. at 474–75. Manufacturing defect liability is imposed on the manufacturer if the product departs from its intended design and causes an injury. Id. Design defect liability is imposed on the designer of the product if the injury could have been avoided by adopting a reasonable alternative design. Id. In a case involving an autonomous vehicle, the courts could impose liability on the manufacturer of the software that guided the vehicle if it was not installed correctly, or the courts could impose liability on the creator of the software if there was a reasonable alternative design that could have been adopted.
Another proposed approach is to treat autonomous vehicles like similar non-automobile technology that currently utilizes autopilot software. Id. at 481. Liability with regard to the use of autopilot in airplanes and ships is determined by placing the duty on the manufacturer of the autopilot software unless negligence by the user can be proven. Id.
Moreover, courts might hold manufacturers of autonomous vehicles to the same standard as common carriers. Dylan LeValley, Comment, Autonomous Vehicle Liability—Application of Common Carrier Liability, 36 Seattle U. L. Rev. 5, 12 (2013). A common carrier is held to the highest standard of care and is bound to use “extraordinary diligence . . . to protect the lives and persons of his passengers.” Id. at 18 (citing Central of Georgia Raliway Co. v. Lippman, 110 Ga. 665, 667 (1900)).
V. Death of Joshua Brown
On May 7, 2016, Joshua Brown was killed in a car accident that involved the self-driving Tesla Model S. Bill Vlasic & Neal E. Boudette, Self-Driving Tesla Was Involved in Fatal Crash, U.S. Says, N.Y. Times (June 30, 2016), http://www.nytimes.com/2016/07/01/business/self-driving-tesla-fatal-crash-investigation.html. Mr. Brown was traveling in Williston, Florida while his vehicle was on “autopilot mode.” Id. Neither the autopilot software nor Mr. Brown recognized that a tractor-trailer was turning left in front of the vehicle so the brakes were never applied, and a collision occurred. Id. This incident was the first known fatal accident involving a self-driving vehicle. Id. If Mr. Brown’s estate or the driver of the tractor-trailer decides to seek damages against Tesla, a court will be forced to wrestle with the issue of liability in a case involving an autonomous vehicle for the first time.
In theory, the emergence of autonomous vehicles will make society safer. However, it is impossible to guarantee that autonomous vehicles will operate perfectly. Therefore, it is essential that individuals who fall victim to the flaws of these machines understand their legal remedies. Without action from the legislature to address liability issues with regard to self-driving vehicles, it is up to the judicial system to solve these problems. As we move forward into a world with fully automated vehicles traveling at incredibly high rates of speed, we will need to have a liability scheme that is coherent and equitable.
* Joshua Gorsky is a second-year law student at the University of Baltimore School of Law, where he is a staff editor for Law Review. In addition, he is a Law Scholar for Civil Procedure I, serves as a member of the Honor Board, and competes on the school’s National Labor and Employment Law Moot Court Team. This summer, he interned with the Honorable Charles B. Day, United States Magistrate Judge for the District of Maryland. He presently works as a law clerk for the Consumer Protection Division of the Office of the Maryland Attorney General.