Autonomous vehicles (AVs) might be the wave of the future, but they also bring a tidal wave of legal questions. Traditional negligence theories involving a “reasonable person” may not win the day in cases involving AV accidents. Taylor & Associates addressed the critical legal questions surrounding AV and trucking in a new SAE EDGE research report spearheaded by Dr. Rahul Razdan of the Advanced Mobility Institute, Florida Polytechnic University. SAE EDGE Research Reports provide state-of-the-art and state-of-the-industry examinations of the most significant topics in mobility engineering. Following is a brief summary of our key considerations of the legal frameworks impacting AVs. The complete report, which includes input from several industry leaders as well as our complete analysis, is available through SAE here.

Legal Frameworks Impacting Autonomous Vehicles

Who is responsible when an AV crashes? This is the key question as AVs enter the roadways and liability shifts from driver to others. Negligence theories require juries to look to how a reasonable person in a similarly situated circumstance would behave; AVs lack the human element and judgment, so what legal standards apply? As is historically the case in the automobile industry, AV technology will introduce its own set of legal implications and exposure. The traditional automotive accident case law remains rooted in driver negligence; the introduction of AVs adds a significant layer of complexity to the negligence framework – as the controls move from a traditional driver to a third party, the liability shifts as well. Beyond a driver at the wheel, these cases may include liability of a manufacturer, a software provider, or an off-site controller.

Emerging Liability Theories

Negligence and Negligent Entrustment of Vehicles

Negligence claims against operators of AVs may prove difficult, since the driver or remote operator has limited control over the AV. Similarly, negligent entrustment claims may be difficult, where the injured person must prove: (1) The owner entrusted the vehicle to the driver; (2) the driver was negligent; (3) The owner knew or had reason to know that the driver had no driver’s license, was incompetent, or was known to drive recklessly; (4) the driver was negligent at the time the incident occurred, and (5) the driver’s negligence caused the accident.

Res Ipsa Loquitur and Products Liability

Strict liability theories abound with AVs. At the forefront is res ipsa loquitur, which requires the following elements to be proven: 1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence, (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant, and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. This theory removes the necessity of proving negligence and applies stricter liability. If the courts follow this path, it may cause many AV owners to seek out opportunities to collect from AV manufacturers due to products liability, requiring them to prove (1) the product was defectively designed so as to render it unreasonably dangerous, (2) a safer alternative design existed, and (3) the defect was a producing cause of the injury for which the plaintiff seeks recovery.

Breach of the Implied Warranty of Merchantability

AVs are only as good as their parts. When things go wrong, claims may be brought as breach of the implied warranty of merchantability. To establish a claim for breach of the implied warranty of merchantability, the injured party must show that the merchant sold a good which did not meet one of the standards of merchantability just as one would have to do in cases involving non-automated vehicles: (1) passes without objection; (2) is of fair average quality; (3) is fit for ordinary purposes; (4) is of even kind, quality and quantity; (5) is adequately contained, packaged and labeled; (6) conforms to promises on the packaging.

Liability of Local Governments

What if the stop sign is not maintained or the road lines are faded? Local governments may face some responsibility, and issues of immunity will come to the forefront. AVs need appropriate infrastructure to operate effectively, and local governments may need to ensure that infrastructure is updated and well maintained. Currently, local governments are rarely found liable in the case of vehicular collisions, but what happens when AVs cause a collision due to a faded street line or an unpatched pothole? While sovereign immunity often protects government entities, there are three ways to avoid a sovereign immunity defense: (1) if the entity fails to correct or warn against a known dangerous condition; (2) the entity fails to maintain existing roads; or (3) the entity fails to properly construct or install roads. Considering the case law limiting sovereign immunity, local government should take steps to be prepared.

Emerging Tort Defenses

Researchers estimate that by removing the human error factor AVs can reduce accidents by up to 90 percent, saving more than 30,000 lives each year, not to mention injuries to body and property. That being said, there are still questions of potential claims of negligence against an AV manufacturer. A manufacturer owes a duty to use reasonable care in the design of its products to protect against an unreasonable risk of injury or enhancement of injury to a user of the product. The question of manufacturers and their liability in AVs may be tested under this duty. Manufacturers may, however, have a “state of the art” defense, which is intended to protect a manufacturer from liability for failure to anticipate safety features that were unknown or unavailable at the time a product was manufactured and distributed. This defense could help protect manufacturers as AVs begin to break into the market. However, it will not protect them forever and manufacturers should be cognizant of the limitations of their defenses.

Recommendations

The nature of the American legal system is that the legal theories for liability will be tested in the courts with a series of cases based on the current legal frameworks with a bias toward the “reasonable human” guidance. The following actions would greatly aid this dispute resolution process to build a new area of law which can function with stability and creditability.

• Regulatory Backdrop: To move away from the “reasonable human” guidance, there is a need for a regulatory backdrop which can set the reasonable expectations for AVs.
• Safety Science Backdrop: As mentioned, the regulatory backdrop needs improvements in the science for safety, and by extension, any future legal theory of liability will require the same.

Overall, today’s society tolerates other humans on the roads even with the safety results to date because there is a reasonable expectation of the behavior (even bad) of humans. To tolerate any level of risk, AVs will have to build a reasonable expectation of behavior which is easily communicated to their surroundings.

For more information, visit the SAE EDGE Report or contact us.

Contributing authors:
J.W. Taylor, Kristen M. Johnson, Elle M. Slattery, Elena P. Adang and Wendy L. Fisher.