Liability – Potential Processes and Problems

As self-driving cars become more prevalent on our roads, many new liability questions will arise. While these autonomous cars are promised to greatly increase safety, car accidents will still occur, and the liability and litigation framework surrounding car wrecks will have to change to address driverless technology.

Although a few companies are pushing for a move straight to a true driverless car, most car and technology companies are aiming for a slow, gradual move towards self-driving vehicles, introducing autonomous features over the course of several years. This gradual move towards autonomy presents many liability questions. One question is who will be responsible for any updates to the self-driving technology installed on a vehicle. Everyone with a smart phone has been presented with a system update and chosen to decline or delay it. If a car is outfitted with self-driving options that can receive updates wirelessly (a practice that Tesla has already implemented), will the car owner be able to decline or delay the installation of the update? If the owner does have some control over when the update is installed, would the decision to delay the update affect liability should the car be involved in an accident?

Another issue is who will bear responsibility if an autonomous car gets into an accident. Volvo has publicly stated that it “will accept full liability whenever one of its cars is in autonomous mode[.]” (See an article about Volvo’s announcement at http://www.theverge.com/2015/10/7/9470551/volvo-self-driving-car-liability). Similarly, when a reporter was allowed to test drive an autonomous Audi, he was told that the driver would be at fault “[i]f it can be proven that the system was not being used correctly, …but if the system was deployed in accordance with the manufacturer’s specification…then the liability for any road traffic violations or collisions would lie with the manufacturer.” (See article at http://www.telegraph.co.uk/cars/features/driving-audis-self-driving-car-on-the-autobahn/). Tesla, on the other hand, has said that they would only take responsibility if the accident-causing issue was “something endemic to our design.” One law firm in Canada has opined that, as long as cars are only semi-autonomous and have a steering wheel with the capability for the driver to retain control, drivers may still be legally culpable for accidents. Most analysts, though, seem to believe that this is where the line will fall – if autonomous features are being used at the time of an accident in accordance with manufacturer’s requirements, then the manufacturer would bear liability.

The problem, then, is proof – how can a driver prove that he was properly using a self-driving feature? And how will a manufacturer attempt to demonstrate that the feature was being misused? The car companies are at a great advantage here. As explained in the Audi article linked above, car companies are incorporating black boxes that record data into their vehicles. These boxes will retain the data if there is a crash. The problem for the average person injured in a car accident, though, will be getting access to this data. It is safe to assume that car and technology companies will closely guard any data that might give away trade secrets or other information that they spent time and money developing. Moreover, if the accident involves a question of how the driving code was written or operated, getting access to that information would be extraordinarily difficult.

Further, evidence issues could arise regarding liability for traffic violations. If a vehicle is issued a citation for speeding or disobeying a traffic signal, one would assume that the liability principles outlined above would apply. But if a black box only retains data in the case of a crash, would there even be data available regarding whether the car was in self-driving mode? What type of evidence would a car owner need to produce to show that the car was in autonomous mode at the time of the traffic law infraction?

In the event of a car wreck involving autonomous cars, there would still likely be litigation, but it might look quite different from today’s car accident cases. For one, if the car were fully autonomous or being operated in autonomous mode, then the manufacturer or relevant technology company would probably be the one being sued. Further, more cases will proceed under a product liability theory rather than a general negligence theory. This will affect the standard the plaintiff must meet, potentially making cases harder and more expensive to prove. Even products liability law, though, is based in the legal concept of negligence, requiring a plaintiff to prove the existence of a duty and a breach thereof. As this article explores, it is unclear how our current tort system would analyze the existence of a duty in relation to all the people who manufacture and/or operate self-driving cars. As self-driving cars become more common, this is a ripe area for litigation reform, as technology may outpace the changing of relevant laws in this area.