Sue My Car Not Me: A Discussion of Civil Liability

for Autonomous Vehicle AccidentsJeffrey K. Gurney

Sue My Car Not Me: A Discussion of Civil Liability for Autonomous Vehicle Accidents

Jeffrey K. Gurney

3Roadmap

First Stop Second Stop Third StopThe question of

which party bears civil liability for an accident caused

by an autonomous

vehicle will be decided.

Courts will likely find the company which

develops and maintains the autonomous

technology liable for accidents caused by

their technology.

Courts may similarly find

manufacturers of semi-autonomous vehicles liable for accidents caused

in autopilot or similar modes.

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4Accidents Will Happen

Technology is not perfect and will

malfunction.

In accidents involving autonomous vehicles, aggrieved parties will seek recourse.

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2

5Who Should Decide the Civil Liability Question?

Legislatures for

50 statesCongress

Administrative agencies

Prospectively

Nothing requires each state to come to the same conclusion

on the liability question.

There may be different politics and special interests at play in each state.

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1 2

6Prospective Options

Decide which party should be liable through statutory or regulatory rules.

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No fault insurance Each person

maintains an insurance policy and seeks recourse under that insurance policy.

Immunity from liability

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7Government Immunity

Second Issue

First Issue

Which government should enact the immunity law?

Presumably, for an immunity system to work, the statutory and regulatory authority would need to come from the federal government.

How would it work? Who would be immune? From what harm? How would the persons aggrieved by autonomous vehicles be compensated?

Two Potential Models: Vaccine producers Nuclear power

plants

8Who Should Decide the Civil Liability Question? (cont.)

Retrospectively

Once judges decide cases on civil liability for accidents caused by autonomous technology,their rules will become prospective rules for future accidents.

1,700 United States District Court judges State courts

• 12,000 state court trial judges

• 1,000 intermediate appellate court judges

• 350 judges/justices on the states’ highest courts

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1

Judges

9The Basis of our Civil Liability System

Two Principal Goals

Compensation

Deterrence of unfavorable

behavior

10The Basis of our Civil Liability System (cont.)

Ethical Underpinnings

Social PolicyWhat policy reasons support liability?

Corrective justice and fairnessA person should be liable for harms he

or she wrongfully caused.

11Current Civil Liability for Automobile Accidents

Principles of negligence

The insurance industry has developed informal

rules to govern accidents.

Duty

Damages

Breach of that duty

The breach caused harm

A driver of an automobile is generally liable for the accidents that he or she causes.

12Culpability of Driving

Level 0 Level 1 Level 2 Level 3 Level 4 Level 5

Cul

pabi

lity

SAE Levels of AutomationDriver Manufacturer

13How Autonomous Vehicles May Cause Accidents

Inadequacy of the algorithmBugs in the

programming

Defect in the manufacture of the

vehicleDefect in the design

of the vehicle

Component failure

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2 4

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14Three Broad Types of Aggrieved Parties

Everyone ElseThe Owner

The Passengers

Third parties who did not voluntarily encounter the

autonomous vehicles.

This person may have received certain information

and/or obtained special training from the

manufacturer or the car dealer.

These persons may not have received the

information and/or special training but otherwise

voluntarily use the autonomous vehicle.

The claims by and the defenses against each of these parties may differ.

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Potential At-fault Parties

The operator and/or owner

of theautonomous

vehicle

Component manufacturer

of autonomous vehicle

Another driver, manufacturer or

person

The dealershipthat sold the autonomous

vehicle

The autonomous technology

manufacturer

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16Potential Lawsuits

31 2

An injured or aggrieved party will likely sue any and

all reasonably potential parties.

The injured or aggrieved party is not required to sue

any one particular defendant or limit the lawsuit to only one defendant. Multiple

defendants may be liable for one harm.

The defendants may differ, the claims may differ, and the defenses may differ,

depending upon the identity of the plaintiff.

A defendant may be able to recover against other

defendants.

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17Operator Liability

Pros Cons

• Ease of system.• Practical issues with manufacturer liability

could be avoided, such as ensuring that the owner properly maintains his or her autonomous vehicle.

• The operator may not have an opportunity to prevent the accident.

• The operator is probably not the most blameworthy party for the accident.

• The operator has no ability to prevent the accident from recurring in the future.

• The “lemon” autonomous vehicle. • Liability on the operator may deter public

acceptance of autonomous technology.

1 2

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1 2

19“I’m a great driver. The other guy is the bad driver.”

Allstate Survey 2011 Imposing liability on the operator or

owner of an autonomous vehicle may

disincentivizepeople to

purchase these vehicles.

64% considered themselves excellent or very good drivers However, only 29% of “other

drivers” are excellent or very good drivers.

Even though: 40% admitted to

speeding over 20 miles per hour above the posted speed limit

45% admitted to driving while excessively tired.

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20Practical Issues with Operator Liability

Which of the passengers is at-fault?

• Is it the person who sits in the front left where a traditional driver would sit?

• Is it all of the passengers?

Passengers may not be able to compensate for

the harm.

There might not be any passengers at all.

1 2 3

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21Manufacturer Liability

01

02

Pros• The manufacturer is in the best position to improve the safety of

autonomous vehicles and therefore able to prevent the accident from recurring.

• Since the autonomous vehicle itself cannot compensate people for harm or damage it causes, the manufacturer is probably the party most responsible for the harm caused.

• The manufacturer wrote the algorithm for the specific vehicle.

Manufacturer refers to the company that produces the technology to cause the vehicle to operate autonomously.

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22Problems with Manufacturer Liability

Technical Issues with Manufacturer Liability There may not be a single manufacturer. The accident could have been caused by a component or

software owned by another company. People drive their vehicles for too long. People do not adequately maintain their vehicles. People modify their vehicles.

Systematic Issues with Manufacturer Liability Increases the price of autonomous vehicles relative

to non-autonomous vehicles. Each autonomous vehicle will be priced at a

higher price to account for potential liability risk for the manufacturer.

Deters innovation? Delays innovation

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23Products Liability Law

1

2

3

6

5

4

ProductsLiability

LawWarning Defect Breach of Warranty

MisrepresentationNegligence

Manufacturing Defect Design Defect

For automobiles, there is also a seventh doctrine: Crashworthiness.

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24Rationales for Products Liability

Cost Internalization Deterrence

Risk Spreading

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2

3

25Manufacturing Defects

The product failed to meet the specifications in manufacture; and

The failure caused the harm.

Software is not considered a product. A defect in software or

an algorithm may not be a manufacturing defect.

Two elements

Potential shortcomings

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26Design Defects

Two tests1 2Consumer expectations test Risk-utility test

Rule: A product is defective if it is dangerous beyond the expectations of a reasonable consumer.

Shortcomings: Many jurisdictions have abandoned

this test. Of those jurisdictions that have not

abandoned this test, many will not apply it to a complex product.

Rule: A product is defective in design if an accident results and that accident could have been prevented by designing the product in a different manner and the benefits of that alternative design would have exceeded the costs to implement it, including any diminished usefulness or diminished safety

Shortcomings: Difficulty and cost of proving a

design defect using the risk-utility test.

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27Warning Defects

Two types of claims

Warnings work in conjunction with design• Duty to Warn• A manufacturer is required to inform

purchasers and users of the hidden dangers in a product.

• Duty to Instruct• A manufacturer must inform buyers on

how to avoid a product’s dangers in order to use it safely.

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A subset of products liability that allows a

plaintiff to recover against a manufacturer when a defect cannot otherwise

be proven.

The idea is that the product must have been defective.

Elements

The product malfunctioned;The malfunction occurred during

proper use; andThe product had not been altered

or misused in a manner that probably caused the malfunction.

Shortcomings

• Some jurisdictions do not recognize the Malfunction

Doctrine• Courts typically require unique

facts to apply the Malfunction Doctrine

• An expert may still be required.

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Malfunction Doctrine

29Crashworthiness

Crashworthiness Duty

Enhancement of InjuryCar manufacturers

have a duty to make their cars

reasonably safe in the event of an

accident.

Crashworthiness is not about the

underlying accident, but rather about

design decisions that cause

additional injuries.

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30Defenses & Limitations

State of the Art Was the danger

preventable at the time the vehicle was produced? But what if the

algorithm can be easily updated?

Comparative fault

Misuse Did the user use the

product in some unforeseeable manner? But what impact

do human factors have?

Assumption of Risk

1

3

2

4 Did the plaintiff

contribute to the harm?

Did the plaintiff assume the risk of harm?

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31Potential New Theory of Liability?

Most products rely on or require the product user to control it.

BUT

Fully autonomous vehicles will differ in many important respects from machines

that have traditionally been in use because they will be free range and will control

themselves.

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“Imputing Driverhood”: Treating the Manufacturer as the “Driver” of the Vehicle

Johnny, while driving a non-autonomous vehicle, runs a red light and crashes into

another vehicle.

Johnny owns a fully autonomous vehicle and is riding in that autonomous vehicle when the autonomous vehicle runs a red light and crashes into another vehicle.

Why should there be two separate sets of laws for two very similar accidents? Why should there be added administrative costs to prove liability in the second

accident?

One alternative is to treat the manufacturer as the “driver” and to apply principles of negligence to accidents caused by autonomous vehicles.

Principles of negligence would apply to the accident.

Principles of products liability law would likely apply to the accident

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33The Potential Problems with Level 2 and Level 3 Autonomous Technology

A semi-autonomous vehicle that relies upon the human to intervene is likely

based on flawed assumptions

• First, this technology assumes that the operator of the semi-autonomous vehicle will pay attention to the vehicle or the road while the vehicle is in self-driving mode.

• Second, this technology assumes the operator or user is capable of safely taking control of the driving responsibilities if his or her intervention is needed.

Autopilot systems used in airplanes are different

• A trained professional operates the autopilot system.

• The need for a split-second handoff is less frequent with autopilot for an airplane than it would be for a vehicles.

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34Problems with the Human Override

The operator may miscalculate the need to take control of the

vehicle.

Allowing a human being to operate a vehicle creates a dangerous risk to society.

Short-term

Long-term

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What does this all mean?

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37The Facts

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Potential At-fault Parties

Arizona state or local government

Rafaela VasquezElaine Herzberg

Uber

Volvo or componentmanufacturer

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39Uber

Approximately 6 seconds prior to the

accident, the radar and LiDAR detects Elaine.

• The vehicle is traveling at 43 m.p.h.

At 1.3 seconds prior to the accident, the

system determines that an emergency

braking maneuver was needed to mitigate the

collision.

Uber had disabled the emergency braking while in self-driving

mode to reduce erratic driving behavior.

1 2 3

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40Uber cont.

Uber relies entirely on the safety driver to execute an emergency braking

maneuver.

The Uber system is not designed to alert the safety driver when an

emergency braking maneuver is needed.

The safety driver (of course) was not paying attention to the road.

4 5 6

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41Tesla

42Two Main Defect Questions for Tesla Autopilot

Human Factors Issues

The decision to forego LiDARHas Tesla designed

its autopilot system to

reasonably address the operator

misuse?

Is the autopilot system defectively designed because of the decision not

to use LiDAR?

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Concluding Thoughts

DataCollection

The safe deployment of

Level 2 or 3AVs

The design of the interior of AVs

To sell or not to sell

Level 4 or 5AVs

Human drivingis a public health

crisis

44My Publications

Crashing into the Unknown: An Examination

of Crash-Optimization Algorithms Through the

Two Lanes of Ethics and Law, 79 Albany Law Review 183 (2016)

Driving Into the Unknown: Examining the

Crossroads of Criminal Law and Autonomous Vehicles, 5 Wake Forest J.L. & Pol'y

393 (2015)

Sue My Car Not Me: Products Liability and

Accidents Involving Autonomous Vehicles,

2013 U. Ill. J.L. Tech. & Pol'y 247 (2013)

Imputing Driverhood: Applying a Reasonable

Driver Standard to Accidents Caused by

Autonomous Vehicles, Robot Ethics 2.0 (2017)

A Products Liability Analysis of the Five

Levels of Automation&

The Design Completion Conundrum

(both in progress)

02 01

03

04 05

Human Error Will be the Cause of All

Autonomous Vehicle Accidents, Too

& A Survey of

Autonomous Vehicle Laws

(both in progress)

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I relied on many sources, in addition to my prior work, in preparing for this presentation.

A full list of sources are available upon request.

Sources