Written by Lauren Gibbons, Esq.
Edited by Janeen Koch, Esq.
Although the autonomous vehicle was merely a cartoon concept when “The Jetsons” aired on television over 50 years ago, the time of the autonomous vehicle has finally arrived. While fully autonomous vehicles are not a common mode of transportation just yet, their operation is not far into the future. Currently, several major car manufacturers have implemented automated features (i.e. automated parking and automatic emergency braking) which puts technology well on the road to fully autonomous vehicle operation.
These technological developments pose major questions for liability analysis in motor vehicle collision cases. There are countless motor tort cases filed, settled, and/or litigated every year. These cases generally center around the legal theories of driver negligence, contributory negligence, and assumption of the risk, which are all dependent on human perception, acts, and/or omissions. Based on the evolution of fully human-operated vehicles to computer-controlled vehicles, it is inevitable that the auto tort litigation process will drastically change from the current system we have now.
Several states, including California, Florida, Michigan, Nevada, North Dakota, and Tennessee, and Washington, D.C., have already enacted legislation addressing the use of autonomous vehicles. These laws, however, seem to avoid acknowledging partially autonomous vehicles and the liability implications that stem from hybrid human-machine operated vehicles.
On May 30, 2013, the National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation issued a preliminary report about automated vehicles. National Highway Traffic Safety Administration, Preliminary Statement of Policy Concerning Automated Vehicles (2013). The NHTSA is constantly updating this Statement as a guide for development of standards and regulations which will shape the landscape of federal and state legislation and auto tort litigation as a whole.
The NHTSA has created a classification system to delineate various levels of vehicle automation. The vehicles range from Level 0 to Level 4. Level 0 vehicles have no automation and Level 4 vehicles have full self-driving automation, where operation is solely controlled by the vehicle and is free from driver input aside from providing a destination. National Highway Traffic Safety Administration, Preliminary Statement of Policy Concerning Automated Vehicles (2013). A fully autonomous vehicle would mean that there would no longer be drivers, but only passengers. Importantly, on February 4, 2016, the NHTSA officially announced that it will recognize the computer system as the “driver” in Google’s self-driving vehicle. Marco della Cava, Google car’s AI brain counts as a driver, feds say, (Feb. 11, 2016), http://www.usatoday.com/story/tech/news/2016/02/10/google-cars-ai-brain-counts-driver-feds-say/80183418/#.
As defined under the District of Columbia Code, an autonomous vehicle is a vehicle that is capable of operating without a driver. This definition excludes vehicles equipped with automated safety or driver assistance features that require some input from the driver. D.C. Code §50-2351. Under current law, an autonomous vehicle may operate on a public roadway within D.C. if the vehicle (1) has manual override features, (2) has a driver seated in control of the car, and (3) the vehicle is equipped to navigate roads pursuant to D.C.’s traffic laws. D.C. Code §50-2352. This is one of the few laws that still contemplates driver negligence as a viable cause of action because it anticipates and expects human action to override the new technology.
Virginia has not yet enacted any laws on autonomous vehicles, but such laws are certainly on the horizon. Governor McAuliffe announced a partnership between the Virginia Department of Transportation, the Department of Motor Vehicles, the Virginia Tech Transportation Institute, Transurban, and HERE (Nokia’s mapping business) to spearhead an initiative called the Virginia Automated Corridors to assist in automated vehicle testing. Governor McAuliffe Announces New Partnership to Make Virginia a Leader in Automated-Vehicle Industry (June 2, 2015). House Bill No. 1372 was offered on January 22, 2016 to amend and re-enact §46.2-100 of the Code of Virginia to include a definition for “autonomous vehicle” as a vehicle that “…handles all aspects of the dynamic driving task, and does not require the involvement of a driver at any time for its safe operation.” On February 3, 2016, however, the House subcommittee recommended striking this Bill from the docket.
As an example of how these considerations are becoming reality, USAToday reported that “last year, Google’s small car was pulled over while testing in Mountain View, Calif., for driving too slowly. The image of a police officer and the car prompted online chatter about who, in this instance, was liable, the car or the human riding inside?” Marco della Cava, Google car’s AI brain counts as a driver, feds say, (Feb. 11, 2016), hhttp://www.usatoday.com/story/tech/news/2016/02/10/google-cars-ai-brain-counts-driver-feds-say/80183418/#.
At this juncture, with the existence of certain automated features, it is important to consider the likely overlap of products liability claims and driver negligence claims. Drivers may currently bring products liability claims against manufacturers for defective cars or car parts, but the number of these suits will likely increase dramatically with the implementation of driver-assisted technology which can be manipulated and/or overridden by human action. Moreover, with the current technology, a driver’s negligence in the operation of the vehicle may no longer be the proximate cause of an accident. Claims may be made more often against the owner of the vehicle for failure to maintain the vehicle or have its computer system routinely serviced. Of course, negligence actions against the operator of the vehicle may still be viable to the extent that the operator could have manually overridden the automated features of the vehicle.
These considerations will certainly lead to more complicated auto tort litigation and shifts in liability. Although the goal of fully autonomous vehicles is to eliminate vehicle collisions as a whole, these factors must be considered as technology evolves to achieve that goal. While not all of these considerations are necessary at the present moment, the legal and insurance industries need to be aware of the burgeoning technology and the potential for fully autonomous vehicles in the not-so-distant future.