Dec 13, 2018 - Technology
Expert Voices

How today's liability laws cover AV accidents

Illustration of car crashing against a giant umbrella

Illustration: Sarah Grillo/Axios

Autonomous vehicles are widely expected to reduce traffic fatalities, though the number of lives they could save is debated. When accidents do happen, however, self-driving cars aren't likely to present liability issues that current laws can't handle.

The big picture: The legal system already considers semi-autonomous vehicle technologies like anti-lock brakes, adaptive cruise control and electronic stability control. Although AVs may shift more liability risk to manufacturers, current laws around negligence and product liability should suffice for further increases in vehicle automation.

Details: There are four main causes of crashes, which the U.S. legal system will continue looking to when assigning liability for a crash involving an AV.

  1. Driver error. For the occupant of an AV, the equivalents of speeding or running a red light could be failing to monitor the vehicle as required or improperly manipulating or overriding its autonomous system. New legal questions may also arise around passengers — establishing whether they are responsible for any crashes, but also, when there are multiple people in an AV, where responsibility falls to all passengers or just one in the traditional driver's seat. At least initially, passengers will likely be judged against the existing “reasonable person” standard of negligence law.
  2. Design or manufacturing defects. Accidents due to vehicle assembly, software programming errors, sensor malfunctions or vehicle-to-vehicle communication failures would all be addressed by existing product lability laws. A programming error, for example, may cause a rear-end collision by unnecessarily engaging the vehicle’s brakes. If such an error causes a crash in conditions like bad weather, a manufacturer may consider the passenger partially at fault for failure to safely monitor or operate the vehicle.
  3. Poor maintenance. These issues — brakes wearing out, tires going bald — remain the responsibility of whoever owns or manages the vehicle.
  4. Unpredictable events. Accidents with unforeseeable causes, like a rock slide or deer running into the road, will be covered by liability laws as they have been. If no one is at fault, insurance can provide compensation for those injured.

Yes, but: Software programs that determine how an AV reacts when confronted with only undesirable outcomes will present challenging legal questions. Current law isn't equipped to address moral determinations — like whether to make a dangerous swerve, putting occupants at risk, when a pedestrian darts into the road and the vehicle can’t stop in time.

The bottom line: In the short term, AV litigation may take longer and cost more because judges and juries will need to learn about the technology, but it isn't likely to require major changes to current liability laws.

Michael Mallow is a partner and Rachel Straus is an associate with Sidley Austin LLP’s Consumer Class Action Defense practice.

This article has been prepared for informational purposes only. It does not constitute legal advice or reflect the views of Sidley Austin LLP.

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