The evolution of autonomous vehicle technology and its forthcoming widespread use have the potential for many societal benefits, including safer roads, greater economic productivity, and better fuel economy. Along with the innovations and industry growth, stakeholders in the industry will encounter a broad range of legal issues.
This Jones Day White Paper updates our prior publication regarding the legal and regulatory issues related to autonomous vehicles. It focuses on self-driving passenger automobiles and sets forth the developments in the areas of: (i) automated technology; (ii) state and federal regulations; (iii) product liability; and (iv) liability concerns related to cybersecurity and data privacy
Driverless vehicles are coming onto our horizon. As they are adopted for widespread use, they will promote efficiency and spur innovation in a number of industries and transportation infrastructures worldwide. At the same time, high levels of vehicle automation present unique safety, cybersecurity, and data privacy issues for manufacturers, suppliers, sellers, consumers, and the public.
The diverse technological options both in equipment and software have created a market full of competitors striving to prove their worth. The United States federal government, so far, has refrained from choosing a winning technology or implementing a comprehensive regulatory regime. While many states have passed laws addressing autonomous vehicles, they have generally taken a permissive approach that encourages development and testing. Therefore, the laws adopted to date are far from uniform and provide significant flexibility to companies investing in the research and technology that will drive the future of the highly automated vehicle ("HAV").
This White Paper updates the technological, regulatory, and liability developments in the United States since our last White Paper in November 2017. It will address product liability rules and regulations faced in the United States by HAV manufacturers, suppliers, and sellers, and also identify legal issues that likely will arise. At present, in the absence of comprehensive state or federal legislation, traditional tort liability principles will typically govern, while law professors and commentators wrestle with predicting future liability rules. Many expect decreasing emphasis on the common-law negligence of human drivers as they play less of a role, and eventually no role, in operating HAVs. The independent functioning of HAVs puts an increasing emphasis on product design as a cause of future accidents, and questions of product design invoke familiar concepts of product liability.
Product liability rules likely will continue to adapt, as they always have, to address the unique concerns that arise within the budding HAV sector. Federal preemption could play a substantial role in shaping tort liability, but to what degree and manner remain unresolved, because the federal government has not yet acted with defining legislation. The areas of cybersecurity and data privacy raise special concerns for manufacturers of autonomous vehicles and their suppliers, and some have called for federal legislation on these issues in particular. Without federal intervention, manufacturers and suppliers can engage in self-help through contractual risk allocation, indemnification agreements, limitation of warranties, consumer education and training, industry standards, and insurance. This White Paper aims to provide practical advice for HAV manufacturers, suppliers, and sellers to consider now to mitigate the risk of product liability claims.
BACKGROUND
Many vehicles on the roadway already are fitted with automated driving features, and fully autonomous cars are in development and testing. Other types of autonomous transportation, such as drones, trains, ships, shuttle buses, and trucks, will support a variety of industries. Already, certain retail vendors are testing the use of autonomous drones for home delivery of online purchases,1 one company has begun delivering pizzas by robot,2 and at least one shipping company is using partially automated trucks to haul cargo across the southwestern United States.3 Truck platooning and driverless taxis and buses seem to be next. This emerging technology will affect even industries that do not directly deploy autonomous vehicles. The growth of autonomous transportation eventually will yield fewer roadway accidents; the growth of vehicle sharing will decrease demand for traditional parking; and the optimization of vehicle functions will reduce the consumption of fuel, lubricants, chemicals, and degradable materials.4 The wide-ranging uses and applications of this technology raise too many issues across many industries to address in one White Paper. This White Paper focuses on self-driving passenger automobiles, their regulation, and the legal issues arising from an automated infrastructure.
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Footnotes
1. Jillian D'Onfro, Amazon's New Delivery Drone Will Start Shipping Packages 'In a Matter of Months', FORBES (June 5, 2019). In anticipation of a future with aerial home deliveries, the Federal Aviation Administration published new rules in January 2021. The rules require remote identification of drones and allow small drones to fly over people and at night under some conditions. Operation of Small Unmanned Aircraft Systems Over People, 86 Fed. Reg. 4314 (Jan. 15, 2021); Remote Identification of Unmanned Aircrafts, 86 Fed. Reg. 4390 (Jan. 15, 2021).
2. Kim Lyons, Nuro's Self-Driving Robot Will Deliver Domino's Pizza Orders to Customers in Houston, THE VERGE (Apr. 12, 2021) (In April 2021, Domino's began offering customers living in one neighborhood in Houston the option of having their pizzas delivered by a robot.).
3. Sean O'Kane, UPS Has Been Quietly Delivering Cargo Using SelfDriving Trucks, THE VERGE (Aug. 15, 2019).
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