In a typical auto accident involving two (or more) cars, who bears the costs of the accident rests on the tort law doctrine of negligence. A negligent driver is one who created risk by driving and did not deal reasonably with that risk. For that negligent driver to be held liable, someone or something must have been harmed, and the driver’s conduct must have been the proximate cause of that harm. But can a driver be negligent in the operation of a self-driving car?
The answer is likely yes, but the likelihood of a driver being held negligent will hinge on whether the car operated is fully autonomous or only partially autonomous. In a partially autonomous car, a driver could ignore warning signals from the vehicle to disengage auto-pilot mode, and this could be potentially negligent activity. In a fully autonomous car, however, holding a driver negligent would be a stretch. The claim would have to rest on the basis that the driver was negligent simply for driving that car. This claim is unlikely to succeed. The shift to autonomous vehicle technology is likely to render negligence less relevant, and products liability more relevant.
Under a products liability theory, both manufacturers and distributors can be held strictly liable for injuries caused by a defective or inherently dangerous product. Strict liability means that, if the product can be shown to be defective or inherently dangerous, then liability automatically attaches. This means that the costs of car accidents generally will be imputed onto car manufacturers and distributors. Assuming autonomous cars do lower accident rates, this could be an overall benefit for the public. After all, car companies are the ones that introduce the risk of this new technology. When that new technology leads to harm, it makes sense that the companies should bear responsibility.
Car companies seem to have already gotten on board. When asked who would bear the costs of an accident involving a Tesla autonomous car, Elon Musk responded (with some hesitation) that it would be Tesla. Volvo has already asserted it will take the blame if one of its autonomous cars crashes. But while the companies can claim they will take responsibility, this responsibility does not necessarily translate to bearing the costs. The costs could be imputed onto others, and where these costs will be imputed, and ultimately fall, is the real question at hand. As one author already suggested concerning Level 5 (or fully autonomous) cars: “It could be the auto maker of the Level 5 car and the tech developers, since they were the designers and builders of the Level 5 AI system of the driverless car. It could be the owner of the Level 5 car, whether it is a fleet owner or individually owned. It could be a combination of them, sharing the burden.”
A key consideration moving forward is: should driver liability be permitted to decrease to zero if fully autonomous vehicles become the industry standard?
While the danger of a human driver being liable decreases as automation increases, other dangers will likely increase. The primary danger as cars become more autonomous is the correlative effect it has on driver awareness. Better automation “lulls” the human driver into thinking she can be an “inattentive partner in the driving task.” If the automation were to fail or need driver assistance, a driver might very well be too engulfed in a television show, or too intoxicated to understand what is happening. Is the real danger here doing away with driver liability through classic negligence?
While a lot is still up in the air regarding liability surrounding autonomous cars, one thing seems clear. Driver liability is set to decrease, while manufacturer/distributor liability is set to increase. A key consideration moving forward is: should driver liability be permitted to decrease to zero if fully autonomous vehicles become the industry standard? Should courts consider the mere undertaking of driving, or being driven, by a fully autonomous car an introduction of risk into the community that drivers must deal with reasonably or else face the monetary consequences? The unforeseen dangers of automated cars may lie less in the hands of those who make the cars, than in the hands of those drivers who will no longer have their hands on the wheel.
While accidents caused by human driver error will likely decrease due to the advent of autonomous vehicles, will more accidents happen due to driver inattentiveness? Perhaps driver negligence is a staple of safety on the roads. Whether the time has come to place the lives of others completely in the hands of machinery and artificial intelligence, or whether drivers will need to still stay reasonably alert to hazards on the road, is a vital question to roadway safety in the future.
Thomas N. Hughes, Jr.