In law, Tomorrowland’s another day – Part II

A big part of what makes driverless vehicles attractive is their promise to drastically reduce the number of automotive accidents, which cost the world 1.2M lives every year.

That's 33,000 lives in the US and for the 16- to 34-year old demographic, an even bigger killer than handguns. Nine-out-of-10 of these accidents are said to be ultimately down to driver error or negligence.

Self-driving cars don't get distracted or fail to notice or react to what's coming. Current driver assistance systems can step in and take over during moments of driver inattention, preventing accidents. When full-on autonomous vehicles are on the road in numbers, the accident rate will start dropping. Once they are the rule and not the exception, the accident reduction should be massive. The disruption that comes with it will also be massive.

Because there will still be accidents. And inevitably, there will be some big ones. Not big enough to cause second thoughts about the core proposition but big enough to become a landmark court case which could also force a fundamental shifting from the usual structure of liability completely away from the driver and squarely at whoever might be considered the manufacturer.

“The more we get on the levels of automation, the more attenuated its existing rules are to these operations,” says Smith. Not only that, he says, but also the more likely we are to have to deal with weird service models. “They may not only be driverless, they may not even be owned by any individual. It might be a robo-taxi or a two-ton truck low-speed, low mass golf cart on steroids. The law already has difficulty dealing with alternative vehicles and services models. They will all need to be resolved.”

Smith suspects that the way the courts view driverless cars will largely reflect how the communities they serve feel about them. “If they think the self-driving cars are great, they're likely to see the people using them as acting reasonably. If we're afraid of them and we think they're bad, we're likely to see the people using them as acting recklessly, and so the same legal language will be interpreted differently depending on a broader context of our understanding of the technologies.”

It is not inconceivable that fault will point so consistently at the manufacturer that the courts will, ultimately, reassess the manufacturers’ role in the situation and reclassify them as “common carriers,” the same way they have with pipelines and railroads. With that change in status also comes a much stricter liability. This could conceivably, have a deleterious effect on technology developers who might suddenly fear becoming the target of a plaintiff searching for deep pockets.

“I suppose it’s an option (but) I think it’s unlikely because I don’t think the car companies will sign up for that,” says CAR’s Richard Wallace.

“'Common carrier' is a legal term for heightened expectations,” says Smith. “And we're probably going to see heightened expectations on these systems anyway. The idea that a company's willingness to pay could reassure the public and help assuage some of the fears of these systems is a compelling argument for companies saying 'I'm just going to accept a greater share of these costs.' I don't think that these necessarily will be a death knell for any research and development.”

The point, Smith says, is that if automated driving does successfully cut the accident rate half as much as everyone thinks, the liability burden will still be only a fraction of what it had been. Whoever gets the liability will simply be stuck with a much larger share of a much smaller pie.

Wallace thinks what might happen is a third-party solution may get developed. “A lot of states have catastrophic injury pools established. It may be from severe auto crashes or it may be from industrial accidents, or like in California, when a fire takes out entire subdivisions. I could see us going down that path potentially. I’m not sure how the State Farms and Allstates would respond, because clearly, automotive insurance is a very lucrative line of business.”

David Strickland, a partner at Venable, says that the reason so few laws and regulations for driverless car technologies is simply because that isn’t how the system works. “When we think about any technological advances in a vehicle, very few of them have an actual regulatory base. When you think about active safety systems, lane-keeping assists, that sort of thing, there weren’t regulations in place saying ‘this system has to operate in this way’. It was automakers innovating and the reason that was able to happen is ultimately once you are certified to be compliant with all the federal motor vehicle safety standards, you’re road-worthy in the United States.”

Strickland adds: “You could do stuff besides that on the vehicles and the issue how that’s managed or regulated is through the defect investigating process at NHTSA [National Highway Traffic Safety Administration], whether or not something poses an unreasonable risk to safety. You could put on these new systems but if they do something that causes a risk from injury or fatality or increase crash rate that means the agency can then say that you have to remediate.”

But when the regulations do start coming in within the 50 states, do we run the risk of ending up with a hodge-podge of conflicting regulations?

Wallace doesn’t think so, believing that the Federal regulatory bodies will find ways of getting the different states to comply. He notes that in the early 1970s, when the Federal Government got the states to impose a uniform 55 mile per hour speed limit across the nation, none of the states were happy about it but, he notes, they complied because the government made it clear that it would not share gas tax revenues with states that didn’t comply. It proved to be a very useful carrot-and-stick.

Venable’s Strickland, on the other hands, believes NHTSA ultimately won’t hesitate to pre-empt, asserting: “Let’s say California is working on its standards and other states take divergent paths that will call for NHTSA to step in with a foundational regulation. I will say in all certainty that will happen.”

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