The below essay was from the grand prize winner of the First Annual Benson & Bingham Scholarship Contest. Submitted by Felipe Hernandez who was recently accepted to Harvard Law School, we are proud to showcase why attorneys Joseph Benson and Ben Bingham selected Mr. Hernandez as the winner of the $2,000 scholarship contest. Benson & Bingham received some outstanding essays from the applicants, and subsequently decided to offer two additional runner up prizes in the amount of $250 to two other participants. Stay tuned to see their submissions in the weeks to come.
This essay will examine the legal questions of autonomous vehicles (AVs) on liability law. First, this essay will provide background on AVs. Second, this essay will describe some potential benefits, challenges, and remedies affecting liability law. Although, AVs pose fundamental reforms to our transportation system and liability laws, these changes are unique in that we can predict the legal ramifications and design a comprehensive regulatory legal framework.
Autonomous vehicles (AVs), or self-driving vehicles, are automobiles that can drive or navigate roadways without direct human input. AVs may fundamentally change transportation systems, human behavior, economic productivity, and public infrastructure. For example, AVs, in combination with the increasing ride-sharing economy, may reform vehicle transportation from an individually-owned and –operated endeavor to an on-demand multiuser- or public-owned product.(1) As a result, AVs have the potential to free-up hours spent operating a vehicle as passengers may boost their productivity by reading, working, learning new skills, taking an online course, or eating. Correspondingly, transportation infrastructure may change regarding land use patterns, delivery/transportation systems, and reduced parking needs, road capacity, fuel demand, and carbon emissions.(2)
The heterogeneity of AV legislation, notably regulations and definitions, which vary per State, have complicated liability law. For example, while California partly defines AVs as a “vehicle equipped with technology that has the capability of operating or driving the vehicle without the active physical control or monitoring of a natural person”, Nevada defines AVs as “carrying out all the mechanical operations of driving” and does not express the element of control, and Michigan’s broad definition is unclear as to what technology is automatic and whether the AV or human is in control.(7/8/9) Thus, the imminent public availability of AVs, different State regulations, and minor Federal guidelines have raised legal questions of liability, particularly related to personal injury that merit further exploration.
AV Liability Benefits, Challenges, and Remedies
While AVs present interesting legal questions on liability, AVs also present benefits. For example, AVs may drastically reduce human-driver caused accidents, which account for 94% of vehicle accidents.(10) Specifically, they may at minimum reduce the over 40% of fatal crashes due to driving under the influence of drugs, fatigue, or distraction. In 2015, the U.S. National Highway Traffic Safety Administration estimated that about 35,000 people died and 2.4 million were injured in automobile collisions.(11) AVs can potentially save these lives. In addition, AVs are projected to significantly reduce transportation network congestion, or increase roadway capacity, due to improved distance-to-movement ratios between vehicles and efficient traffic control that will reduce the risks for accidents while maximizing passenger comfort, sense of safety, and transportation productivity.(12) Notably, AV technology can minimize the causes of accidents. For example, Mercedes-Benz introduced Vehicle-to-X communication technology to the public which is an AV safety feature that provides radio-wave exchange of information between vehicles, traffic, and infrastructure that allows the AV to adjust its operation in response to its surroundings. This traffic communication network can be programmed to continually asses safety risks, such as drunk driving, then communicate with its infrastructure surroundings, such as signal a traffic light to ‘stop all traffic’, and then communicate with other vehicles to trigger a programmed response to pull-over and notify emergency vehicles to respond to the drunk driver.(13) Overall, AVs have the high potential of significantly reducing human caused automobile accidents, deaths, reduce congestion, and minimize accident risk factors. While AVs may significantly reduce traditional liability cases, more data is required to support these claims.(14)
Nevertheless, the mere introduction of AVs onto our transportation networks is challenging because the technology cannot effectively, at this point, account for all human driver error, pedestrian traffic, and un-programmed environmental changes (e.g. maintenance work) or clearly distinguish between inanimate and human objects.(15) As a result, there are concerns that AVs cannot properly act according to roadway environmental fluctuations, which presents a high risk of liability. This generates questions about standards of product liability, producer negligence, and manufacturer defect with respect to reasonable expectations of safety under the circumstances that the product, or AV, will undergo.(16) Additionally, this affects designer defect liability and ethics of AV software programming with respect to how its decision-making processes are programmed to respond to an impending accident, also known as crash-optimization programming.(17) For example, liability law may considerably vary on the whether the AV is programmed to relinquish control to the human before a crash or to swerve to avoid/minimize pedestrian injury or to minimize damage to infrastructure/other vehicles or to the AV/driver itself. Moreover, this raises questions of culpability with respect to who is liable for injury/death due to an AV accident. Whereas traditionally culpability in current liability law is based on decades of legal precedent, culpability for AVs is hotly contested. For example, while some argue that the programmer(s) or product manufacturer would be to blame, others would fault the driver of the AV, and others would leave it to insurance companies to assume the risk.(18) Another major risk of liability is that AVs already conflict with some minimum traffic and vehicle operation laws. This raises questions about the standards of safety that a driver, or society, would expect, based on best available evidence, from AVs as compared to human-operated vehicles. Along the same lines, AVs may generate new or unexpected accidents and, thus, crafting AV liability laws strictly or loosely will invariably affect legal determinations of culpability, victims, and financial damages.(19)
These liability concerns have arguably had a ‘chilling’ effect on innovation as manufacturers seek to limit product liability by limiting AV functionality.(20) While there are numerous possible crash scenarios, most can be predicted and avoided based on our current understanding of traffic. Thus, AV programmers and manufacturers can account for these crash scenarios or implement our current ethical and legal system procedures into the decision-making processes of the AV to align potential liability issues with current statutes.(21) AV designers contend that technological obstacles are being addressed in subsequent developments with the goal of crash-less vehicles.(22) For example, mental models of human decision-making cognitive and behavioral processes are being programmed into AVs. This may improve liability law as AVs can generate a report of its decision-making processes, risk analysis, and record the entire accident in accordance to these mental models. Consequently, lawyers and judges may have transparent and higher quality evidence to efficiently determine liability cases.
Overall, while AVs present difficult and new legal questions regarding liability, they offer greater benefits in designing an ideal transportation system that maximizes efficiency, energy use, safety, and costs well-beyond our current system. Nevertheless, the ethical and legal questions surrounding liability of AVs will need to be answered in courts and policymaking arenas. This presents an emerging legal field in which current liability law experts and practicing attorneys must play an immediate leading role. Specifically, liability law attorneys can help guide public policy to set up a compressive regulatory framework that balances AV innovation, availability, and public safety.
https://www.forbes.com/sites/curtissilver/2016/06/28/as-self-driving-cars-change-transportation-infr...[Accessed: August 6, 2017].
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https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/auto?lang=en[Accessed: August 4, 2017].
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https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812115[Accessed: August 4, 2017].
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https://www.mercedes-benz.com/en/mercedes-benz/innovation/car-to-x-communication/[Accessed: August 6, 2017].
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