(March 2019) - The law related to civil liability for accidents involving autonomous vehicles is new and evolving. Various companies are developing autonomous vehicles, which will provide a great number of benefits. Autonomous vehicles could offer opportunities for access to transportation for those who cannot obtain licenses under current law, children, people with certain disabilities, and others. The introduction of this technology into the marketplace will likely increase safety on our highways by decreasing the dangers of driver inattention. However, this emerging technology also creates significant and potentially complicated liability issues as the law develops to meet these unique challenges.
While this is a relatively new technology, there have been numerous accidents involving autonomous vehicles in the United States. Between May 2016 and March 2018 there were at least three traffic fatalities involving these vehicles. In 2016, the "driver" of an autonomous vehicle was killed in an accident in Williston, Florida. A pedestrian was killed in an accident in Mountainview, California in March, 2108 and in March 2018, another pedestrian was killed by an autonomous vehicle in Arizona. Of course, there have also been non-fatal accidents. For instance, in the State of California alone, autonomous vehicles have been involved in more than thirty accidents since 2014.
Whether the accident is fatal or non-fatal, there are unique issues in investigating autonomous vehicle crashes and in defending lawsuits related to these types of accidents.
How Does the Law Define the Term "Autonomous Vehicle?"
States and venues define the term "autonomous vehicle" in different ways. The State of Florida defines and "autonomous vehicle" as "any vehicle equipped with autonomous technology." "Autonomous technology" means "technology installed on a motor vehicle that has the capability to drive the vehicle on which the technology is installed without the active control or monitoring of a human operator." California defines an "autonomous vehicle" as "any vehicle equipped with autonomous technology that has been integrated into that vehicle . . . Autonomous technology means technology that has the capability to drive a vehicle without the active physical control or monitoring by a human operator." Several other states and the District of Columbia have provided similar definitions of "autonomous vehicle."
It is also important to recognize exclusions from the definition of "autonomous vehicle." Florida excludes a motor vehicle "enabled with active safety devices or driver assistance systems . . . unless such system alone or in combination with other systems enables the vehicle on which the technology is installed to drive without active control or monitoring by a human operator." Similarly, California provides that "an autonomous vehicle does not include a vehicle that is equipped with one or more collision avoidance systems . . . but are not capable collectively or singularly of driving the vehicle without active control or monitoring of a human operator." Several states and the District of Columbia have adopted similar exclusions to the definition of "autonomous vehicle." In short, the developing law related to autonomous vehicles will likely be limited to those vehicles that "drive themselves" without continuing input from a human operator. This is opposed to vehicles with more familiar driver assistance, such as cruise control, lane assistance or adaptive cruise control.
Further complicating this area of law, not all states and/or venues have adopted definitions for autonomous vehicles. In fact, only twenty-nine of the fifty states (and the District of Columbia) have enacted legislation related to autonomous vehicles, although governors in eleven states have issued executive orders related to autonomous vehicles.
These complicating factors will require legal analysis. It will be important to retain counsel familiar with the relevant laws in the state where an accident involving this type of vehicle occurs.
Who is Liable in a Crash with No Driver?
Once we have defined "autonomous vehicle," it is important to consider the issue of liability in an autonomous vehicle involved accident. Of course, the question of liability is not simple even in an accident involving traditional vehicles. Often, more than one person or entity can be liable. This will also likely be the case in crashes involving autonomous vehicles.
- The "Driver" It is likely that the person in the driver's seat will be regarded as the "driver" and thereby potentially held liable in most states. California law provides that "an operator of an autonomous vehicle is the person who is seated in the driver's seat, or if there is no person in the driver's seat, causes the autonomous technology to engage." Florida law provides that "a person shall be deemed to be the operator of an autonomous vehicle operating in autonomous mode when the person causes the vehicle's autonomous technology to engage, regardless of whether that person is physically present in the vehicle while the vehicle is operating in an autonomous mode." Nevada has a similar definition for operator. Thus, it is possible, and likely, that most states will consider someone the operator, or "driver," of a vehicle even though the vehicle is "driving itself." Furthermore, the laws of numerous states, including Florida and California, require that autonomous vehicles be equipped with systems to alert the "operator" of an autonomous technology failure and to allow the operator to take control of the vehicle in the event of such failure. In those states, there exists the potential for liability of an operator who is inattentive in the event of a technology failure. It may also be possible that the person who "engages" the vehicle and a vehicle occupant, with the ability to manually override the car, could share liability for failure to do so.
- The Vehicle Owner Most states provide for liability of the owner of the vehicle regardless of whether that person was operating the vehicle. In Florida, an automobile is recognized as a dangerous instrumentality and the owner of a motor vehicle is liable for the negligence of a permissive user of a vehicle. Other states, such as Massachusetts, attribute liability to a vehicle owner only in the circumstance where the owner had "the authority and means to control the driver's conduct." Regardless, it is likely that the owner of an autonomous vehicle will potentially be liable, whether or not the owner is the operator of the vehicle.
- Employers Similarly, there exists the potential for liability of an employer of an individual driving a company vehicle or a non-company vehicle in the pursuit of his or her responsibilities to the company. If an employee is liable as the operator of a vehicle, it is likely that plaintiffs' attorneys will argue that the employer corporation is vicariously liable for the actions of that employee taken in furtherance of his or her duties to the corporation. This is another area of potential liability for a corporation that owns autonomous vehicles or has employees who own and use these types of vehicles on behalf of the company.
- Vehicle Manufacturers If an accident is caused by a software or hardware malfunction, the manufacturer or other vendors throughout the stream of commerce could face product liability claims. However, some states have created specific exemptions from liability for manufacturers. In Florida, "the original manufacturer of a vehicle converted by a third party into an autonomous vehicle is not liable where the accident is caused by equipment installed by a subsequent installer of autonomous hardware." California also limits liability of the original manufacturer where the autonomous technology is installed by a subsequent installer. It will be important for attorneys to be familiar with the relevant statutes and other legal authority in the venue where the accident occurred. It is certainly possible that plaintiffs' attorneys will seek to demonstrate that an accident was caused by defects in the autonomous equipment or the software running this equipment. Where this occurs, it is likely that there will be potential liability similar to that attributed relative to other defective products. It will therefore be important to hire counsel familiar with products liability law as well as the law related to autonomous vehicles. If the software or hardware malfunctions resulting in a crash, this would potentially present a cause of action for product liability.
This is an area of evolving law. The case law related to these accidents, especially the fatal accidents, will be significant. Early retention of counsel familiar with the latest law in this area, pertinent collection of potentially deteriorating evidence, and familiarity with experts in the field will be vital to an insurer's ability to effectively investigate and defend its insureds.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.