The Lamber Goodnow Legal Team is in the Driver’s Seat When it Comes to the Legal Implications of this Groundbreaking Initiative
With 2015 firmly in the rearview mirror, and 2016 automotive technology emerging at an accelerating pace, people are being forced to face a future that includes autonomous and driverless cars and the myriad of legal, legislative and insurance related implications that follow. And although Back to the Future: Part II wrongly predicted flying cars by 2015, the current testing of autonomous vehicles could be a major stepping-stone to making the technology a reality by the time The Jetsons predicted in 2062.
The evolution of in-car automation has a longer history than commonly recognized. A brochure for 1958 Imperials and Chryslers advertised “Auto-Pilot” (cruise control) as “the most remarkable invention,”1 that “helps you maintain constant speed.”2 Following Chryslers use of auto-pilot, Popular Science wrote a 1958 article that stated, “Like it or not, the robots are slowly taking over a driver’s chores.”3 By the 1970s, anti-lock brakes were available commercially,5 and by the mid 1990s, electronic stability control had been introduced. In recent years advanced technologies have become even more common including: automatic breaking systems, automated parallel parking, and lane keeping assistance. At the January, 2016 Consumer Electronics show in Las Vegas, Mitsubishi Electric’s Emirai introduced a concept car that utilized a cloud based application that would analyze the driver’s history and current condition to see if they were fatigued. Additionally, it has a heart rate monitor, software to help the driver be aware of potential hazards, and technology that allows the driver to change the air conditioning and music with a simple hand movement.5
Today, companies like Volvo, Tesla, Mercedes Benz, Audi have already begun testing autonomous and self-driving vehicles on the roads. The cars also use sensing capabilities and software in order to gauge a safe speed, accelerate, brake, make turns, and anticipate other vehicles movements.
Ryan Hagemann, a civil liberties policy analyst at the Niskanen Center and fellow on robotics at think tank TechFreedom, who specializes in auto robotics and automation, explains it’s not a question of if this technology will be integrated, but when.7 He predicts it will happen by 2025.8
The major push for driverless vehicles is the overwhelming data which suggests they would reduce vehicle accidents by 95%, in addition to clearing road congestion and saving money on gas.9 However, innovative technology is not free from flaws, autonomous vehicles will be involved in accidents, and in the lawsuits that follow attorneys will have to navigate the murky waters of autonomous vehicle liability.
Attorney James Goodnow weighs in on driverless cars in a recent interview with WHDT World News:
As the top contenders in the autonomous vehicle industry pour millions of dollars into research and new technological developments in hopes to make the roads safer than they are today, the inevitable question among the masses becomes, who will become liable when automation is suspected of causing, as opposed to avoiding an accident?
This question does not come with a simple answer. It will introduce unique and challenging questions such as, how will blame be apportioned between a human and the automated system, between systems within the vehicle’s system, was it the software, the hardware, a faulty algorithm, or perhaps even outside cyber security issues such as hackers? These questions have some analysts and attorneys intimating that liability concerns may become a major roadblock to the rollout and advancement of autonomous vehicles. In an article in the San Diego Union-Tribune, experts hypothesized that “the issue of liability, if not solved, could delay or even wipe out the vision of driverless cars gaining widespread consumer use.”10
There is no doubt that accidents involving autonomous and driverless vehicles will pose new liability questions before the courts. However, the legal team of Marc Lamber and James Goodnow believe that through maintaining their knowledge and expertise on the most groundbreaking technological advances, and trusting the ever evolving and dynamic laws of products liability and negligence, there will be no need to put the autonomous vehicle industry on hold.
The legal framework of both products liability and negligence has had decades of evolvement, with both the changing automobile industry, as well as all markets where products are being made and sold. The technological changes have allowed the courts to evolve along with the times and create new precedents. Although attorneys dealing with autonomous vehicle liability will be treading on new ground and creating precedents, they will be able to evaluate each unique situation on a case-by-case basis and utilize the various theories of liability when seeking to recover damages for their clients. Some of the various liability theories are discussed below with examples of how they may apply in an autonomous vehicle case.
Negligence occurs with product manufacturers when they do not exercise a reasonable degree of care when designing their products to be used in a reasonably foreseeable way. An example of this would be when a manufacturer of a fully automated vehicle braking system conducts testing of the brakes on only dry surfaces and not surfaces with rain, ice or snow. If the braking systems are then found to be unable to stop in rain, ice or snow, causing a collision, the person injured may assert that driving on rain, ice or snow is a reasonably foreseeable use of the vehicle and could file a negligence claim against the product manufacturer.
Negligence may also occur when a human driver hits a driverless vehicle causing injuries. A person is negligent if they do not conform to a specific standard of conduct for the protection of the others against an unreasonable risk of injury. An example of this would be a driver texting on their cellphone and not paying attention when the light turned red. If the driver runs the light and hits an autonomous vehicle injuring the passenger, the passenger may assert a reasonable person would know that driving while texting may cause the unreasonable risk of injury and file a negligence claim against the human driver.
A manufacturing defect occurs when a product departs from its intended design and is more dangerous then consumers expect it to be. An example of this would be a manufacturer that ships autonomous vehicles that are well tested with market ready steering software. However, in one instance it accidentally ships a vehicle with steering software containing a flaw that is not present in the market ready version. If the vehicle becomes involved in an accident in which the software flaw is at fault, the injured party may file a claim for damages arising from the manufacturing defect. The entity at fault in this situation could be any company on the supply chain that created the software.
A design defect occurs when there is a foreseeable risk posed by the product when the product was manufactured as intended and used for its intended purposes, or used in foreseeable unintended ways. Many states also make the injured party prove through a risk-utility test that the design defect could have been avoided through an alternative solution at a reasonable cost. An example of this is when the braking software for a line of autonomous vehicles does not increase the braking power when the road surface is wet, causing collisions, and the software could have included the proper software at minimal cost. The person injured by this could file a claim for damages arising from a design defect.
Failure to Warn
A manufacturer who fails to provide adequate warnings of risks to the customer when using a product may be liable for failure to warn if a person is injured because of the lack of information. An example of this would be a vehicle that is part autonomous but disengages and needs the driver to take control in certain situations. If the vehicle does not warn that in some situations the driver will need to take control of the vehicle, and therefore should pay attention to traffic at all times, the injured party may assert a failure to warn claim against the manufacturer.
Misrepresentation occurs when the manufacturer communicates false or misleading information and a person is injured while reasonably relying on the information. This could occur when a manufacturer advertises that their autonomous vehicles very rarely need to be taken control by a human driver, when in reality a human driver has to take over every five minutes and because of this is injured.
Breach of Warranty
Because the process of selling and marketing a vehicle creates express and implied warranties, products liability also includes contract law. An express warranty is a promise made from the seller to the buyer of goods. This could be through actual vehicle warranties or advertising. An implied warranty presupposes that the goods being sold are merchantable. For example, if a provider of parallel parking systems advertises that the technology works just as good in the sun or the rain, but the system only works when there is sun, then the purchaser has a breach of warranty claim.
Depending on the situation, liability will also fall on the manufacturers of software in the event of a cyber security breach, such as hacking. Because autonomous vehicles will be completely controlled by computers, wireless attacks to the software and through WI-FI signals pose a serious threat to people’s overall safety. After hackers remotely disabled several vehicles, one automaker announced that they would conduct a safety recall on 1.4 million vehicles in order for the company to update its software to prevent wireless attacks.11 The recall prompted politicians to propose a bill called the Spy Car Act, which would force manufacturers to take reasonable measures to protect vehicle software.12 In concert with the highway authorities, the Federal Trade Commission would create window stickers that rate the vehicles vulnerability to cyber attacks.13
Strict liability occurs when a manufacturer is liable for the sale of a product that contains an unreasonably dangerous defect, even when the manufacturer has practiced all the proper care in preparation and sale of the product. If the defect causes injury to the user, the manufacturer will be held strictly liable for the damages.
In an effort to win consumer’s trust and advance autonomous vehicle technology, Volvo, Google, and Mercedes Benz have promised to accept liability if their vehicles cause an accident.14 “We want customers to trust we’ve done a really good job,” said Anders Eugensson, Volvo’s director of government affairs. “That’s why we say if anything happens, we assume liability. We feel we can’t launch vehicles to customers unless we’re able to make that statement.”15 However, many feel that this is simply a marketing tactic, especially when the established framework of strict products liability places the manufacturer squarely in the liability chain.
As autonomous technology advances, state and federal legislation will need to create a framework for regulations, including requirements regarding liability. Federal legislation has already begun with the Obama administration creating a four billion dollar plan, which will, “provide the foundation and the path forward for manufacturers, state officials and consumers to use new technologies and achieve their full safety potential.”16
Transportation Secretary Anthony Foxx laid out the plan, which foresees active federal participation, along with the National Highway Traffic Safety Administration (“NHTSA”), to work with automakers and state governments in order to create prototype laws and safety regulations to help insure consistent national policy towards change.17 NHTSA will also be working with automakers over the next six months to refine testing methods for autonomous vehicles.18 Now that the NHTSA has set a timeline, Congress, through The Senate Commerce Committee, will hold a hearing on autonomous vehicle technology and how the federal government can play a constructive role.19
And although Foxx declares, “We are bullish on automated vehicles,”20 state lawmakers, who will ultimately enact the regulations and liability laws (absent congressional preemption), have been slow to act. Few states, including California, have enacted laws allowing testing of autonomous vehicles on public roads. In fact, California has proposed new rules that would require a driver to always be ready to take the wheel.21 The proposal prompted Google to release a statement saying they were “gravely disappointed” in the proposed rules, as they are the leader in driverless technology with vehicles that do not have steering wheels or gas pedals.22 However, as autonomous vehicle technology continues to advance and proposed federal guidelines begin to be drafted, the states will have no choice but to begin creating laws that assist in the overall framework of the emerging autonomous vehicle movement.
In the coming months and years leading up to the mass release of autonomous and driverless vehicles, not only will there have to be communication and cooperation between the federal and state governments, but insurance companies nationwide will also need to be involved in the evolution of their coverage.
According to a 2014 RAND study on autonomous vehicles, there will still be a need for liability insurance, however over time the liability may change as the blame shifts from human drivers to manufacturers and suppliers.23 RAND suggests that insurance companies incorporate a cost benefit analysis when dealing with product liability claims in order to mitigate the cost to manufacturers claims.24 Coverage for physical damage to the vehicle is less likely to change, however, it may become cheaper if the high cost to repair an autonomous vehicle is offset by a much lower accident frequency rate.25
Traditional notions of underwriting criteria, such as the number of miles a driver is expected to drive, and the number of accidents an applicant has had will still apply. However, with the shift to autonomous vehicles, make, model and telematics devices may assume greater importance. Insurers when deciding insurance rates may use devices such as the car’s black box and software showing the drivers physical state.
Because insurance is state-regulated, each state may have its own rules and regulations for autonomous vehicles. Basically there are two types of fault systems in the insurance industry, no-fault and tort based. In a no-fault system, insurers pay the injured party regardless of fault. This system may result in lower costs of vehicles, as the manufacturers are not paying out damages. In a tort based system the injured party would seek damages from the entity that was at fault. This may include manufacturers and suppliers. If manufacturers have to pay liability damages this may cause the cost of cars to rise in order to offset the liability costs. Differences among the insurance regulations prompt experts to suggest insurance companies join in on the state and federal conversation of a cohesive overall framework for the autonomous and driverless car movement.
There may be differing views on how quickly autonomous vehicle technology will be adopted; however, there is no dispute that it is not a matter of if this technology will be implemented but when. Autonomous and driverless vehicles will ultimately make the roads a much safer place to travel, however, accidents and questions of liability will always be part of vehicle travel.
3 Frank Rowsome Jr., 1958 Imperial: What It’s Like To Drive An Auto-Pilot Car, Popular Science (Apr. 1958), http://www.imperialclub.com/~imperialclub/Articles/58AutoPilot/index.htm (last visited Jan. 26 1, 2016).
4 1970 Lincoln Continental Brochure, Oldcarbrochures.com, http://www.oldcarbrochures.org/NA/Lincoln/1970_Lincoln/1970-Lincoln-Continental-Brochure/1970-Lincoln-Continental-07 (last visited Jan. 26, 2016).
5 Alyssa Newcomb, CES 2016: A Ride Inside the Car of the Future, (Jan.7, 2016), http://abcnews.go.com/Technology/ces-2016-ride-inside-car-future/story?id=36136230.
10 Chris Nichols, The San Diego Union-Tribune, Liability could be a roadblock for driverless cars, http://www.sandiegouniontribune.com/news/2013/Oct/30/liability-driverless-car-transovation-google/.
11 Lauren Keating, Tech Times, The Driverless Car Debate: How safe are autonomous Vehicles? (Jul. 28, 2015), http://www.techtimes.com/articles/67253/20150728/driverless-cars-safe.htm.
12 Brian Fung, The Washington Post, The government push to regulate driverless cars has finally begun, (Jul. 21, 2015), https://www.washingtonpost.com/news/the-switch/wp/2015/07/21/the-push-to-regulate-driverless-cars-has-finally-begun/.
14 Keith Naughton and Margaret Cronin Fisk, BloombergBusiness, What Happens If Two Driverless Cars Crash? Lawyers Drool, (Dec. 22, 2015), http://www.bloomberg.com/news/articles/2015-12-22/driverless-cars-give-lawyers-bottomless-list-of-defendants.
16 Ashley Halsey III, The Washington Post, White House hopes to shape national policy on driverless cars, (Jan. 14, 2016), https://www.washingtonpost.com/local/trafficandcommuting/white-house-hopes-to-shape-national-policy-on-driverless-cars/2016/01/14/46e3bd1e-ba4e-11e5-829c-26ffb874a18d_story.html.
19 Martine Powers, POLITICO, Congress gears up for driverless cars, (Jan. 15, 2016), http://www.politico.com/tipsheets/morning-transportation/2016/01/congress-gears-up-for-driverless-cars-railroad-merger-hand-wringing-continues-european-automakers-complain-about-emissions-targets-212191.
20 Ashley Halsey III, The Washington Post, White House hopes to shape national policy on driverless cars, (Jan. 14, 2016), https://www.washingtonpost.com/local/trafficandcommuting/white-house-hopes-to-shape-national-policy-on-driverless-cars/2016/01/14/46e3bd1e-ba4e-11e5-829c-26ffb874a18d_story.html.
21 Keith Naughton and Margaret Cronin Fisk, BloombergBusiness, What Happens If Two Driverless Cars Crash? Lawyers Drool, (Dec. 22, 2015), http://www.bloomberg.com/news/articles/2015-12-22/driverless-cars-give-lawyers-bottomless-list-of-defendants.
23 Insurance Information Institute, Self Driving Cars and Insurance, (Feb. 2015), http://www.iii.org/issue-update/self-driving-cars-and-insurance.