Would You Let Your Car Do the Driving? How Will Autonomous Cars Change Our Laws?

Auto Accident
Autonomous Cars
Autonomous Car Regulation

By Margaret E. Machaiek

At the 2015 International Consumer Electronics Show in Las Vegas early this year, several major automakers unveiled plans to produce autonomous vehicles – cars that can literally drive themselves.  Notably, Audi sent a car from Silicon Valley to Las Vegas in time for the convention.  Mercedes-Benz debuted its prototype of a luxury model autonomous vehicle, the F 015.  BMW introduced its i3 EV, which has the capability not only to parallel park on its own but also to independently locate and pull into a vacant space in a parking garage.  The CEO of Ford reported that his company will soon produce a more affordable version of the autonomous vehicle that will be accessible to a broad range of consumers.

These recent announcements have garnered international attention and fueled speculation about how the development of autonomous vehicle technology may fit into existing legal and regulatory schemes.  However, this technology is not brand new, nor are concerns about the legal status of “driverless vehicles” and those who manufacture and operate them. 

Four states and the District of Columbia already have laws on the books permitting the testing of autonomous vehicles on public roads and providing basic safety guidelines and requirements.  Over the last several years, many states have proposed or considered laws that would mandate that autonomous vehicles contain certain safety features, and that a licensed driver remain in the vehicle while it is being tested. 

Many of these laws, although they never took effect, contained similar features and had provisions in common with the few laws that have been passed to date.  A common feature of these laws is that individuals or entities who wish to test driverless cars on public roads must either carry $5 million worth of insurance, or post a $5 million safety bond.  Additionally, most of the laws require that a licensed driver remain seated and alert at the controls, and that the vehicle contain a mechanism for alerting the driver in the event of a system failure so that the driver could take over manual operation of the vehicle.

Proponents of autonomous vehicle technology assert that, because most car accidents are caused by human error or inattention, autonomous vehicles will drastically reduce the number of accidents.  Significant questions remain, however, about where the responsibility will fall in the event of an accident that this technology is simply unable to prevent. 

State laws exempt manufacturers from liability only in cases where a vehicle has been modified with autonomous vehicle technology by a third party.  Legal scholars have speculated that the NHTSA may promulgate federal regulations to govern safety standards for autonomous vehicles, which could pre-empt states’ attempts to pass their own regulations or even prevent injured parties from bringing lawsuits alleging negligent or defective design or manufacture in cases where the minimum federal guidelines have been met.

Despite these lingering questions, unless and until state or federal lawmakers take action to regulate the field, the same legal concepts that apply to regular automobile accidents must also be applied in accidents involving autonomous vehicles.  For instance, just as a manufacturer would only be held liable for damages resulting from a car accident if some component of the vehicle were defective, a manufacturer of an autonomous vehicle could only be held liable for an accident if the accident were caused by some unforeseeable failure or malfunction of the vehicle or its operating system.  Additionally, a manufacturer’s liability could be reduced or even avoided altogether if the vehicle is equipped with an adequate system for alerting or notifying the operator that some type of maintenance or system check is required.

A driver who fails to exercise reasonable care cannot escape liability by relying blindly on technology.  As with any other vehicle technology, such as cruise control, park assist, or even GPS, a driver using autonomous vehicle technology must exercise a level of care that is reasonable under the circumstances.  Thus, for instance, California law, while permitting the operation and testing of autonomous vehicles, also requires that the driver remain seated in the driver’s seat, monitor, the operation of the vehicle, capable of taking over immediate manual control if necessary.  Although this not the law in every state, it serves as a reminder that even when autonomous vehicle technology becomes widely available, operators must adhere to a standard of reasonable care.

Of course, it is difficult for anyone to determine with precision the standard of care that a reasonably prudent person would exercise when operating an autonomous vehicle because the technology is not yet widely available.  Some sources predict that driverless car technology will be commercially available to consumers as early as 2017.  

Others, however, estimate that it will be at least seven to ten years before autonomous vehicles are likely to be spotted traveling down the interstate as part of the daily commute.  In any event, consumers should not expect autonomous vehicles to serve as an invitation to engage in gratuitously risky behavior, such as getting behind the wheel while intoxicated or becoming engrossed in internet activity while the vehicle is traveling down the interstate at speeds of up to 70 mph. 

For the foreseeable future, while the technology remains in its infancy, all drivers – even drivers of “driverless” vehicles – will continue to owe a duty to others on the road.

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