Autonomous Vehicles: Driverless Does Not Mean Liability-Less

With that growth comes the increased probability that “driverless” cars carrying human passengers will be involved in more on-road collisions and ordinary traffic violations. Who shoulders the liability for these incidents when there is no human driver behind the wheel? How will the law adapt to a world where responsibility for a car crash may lie more in the strength and reliability of computer code and algorithms than in human conduct?

States Take the Lead on Accountability

States are developing a patchwork of approaches to the testing and deployment of autonomous vehicles on public roads, but the United States still lacks a uniform liability framework for the use of this technology. As these vehicles become a regular part of millions of Americans daily lives, courts will be asked to resolve liability for on-road incidents in which responsibility cannot lie with a human driver. Plaintiffs’ lawyers are beginning to argue that autonomous vehicles are defective when they do not operate as a reasonable consumer would expect them to. At least one consumer vehicle manufacturer has already been found partially liable after its vehicle, operating using a partially automated driving system (SAE level 2, supervised automation), was involved in an accident.

California amended its vehicle code (effective July 1) with a new bill that will hold a manufacturer or operator liable for traffic violations committed by its autonomous vehicles. Assembly Bill 1777 allows law enforcement to issue traffic violation citations (“Notices of Autonomous Vehicle Noncompliance”) directly to the manufacturer or operator for infractions like illegal U-turns or ignoring school bus stop signs. The law also mandates two-way communication tools for remote operators and enhances emergency response protocols. Autonomous vehicles must have technology allowing police to contact a remote operator, and manufacturers must be able to guide vehicles away from a restricted area within two minutes of an emergency request. The law aims to create a protocol for holding autonomous vehicle manufacturers and operators accountable when their vehicles commit traffic violations or obstruct emergency responses — issues law enforcement regularly encounter.

Traditional Product Liability Standards Prevail (for Now)

Absent a federal liability standard that is specific to autonomous vehicles, any fault will likely be assessed under traditional product liability standards. This means that autonomous vehicle manufacturers and operators should pay close attention to both physical and digital manufacturing risks. Liability could stem from defects in the physical vehicle (e.g., the vehicle’s mechanical parts and instruments) or in the vehicle’s autonomous operating software. Manufacturers and operators should heavily scrutinize the original coding design and testing process, whether and when subsequent software updates and enhancements are necessary, and whether the automated driving system is engineered to comply with state and local rules of the road where it intends to operate.

Federal Safety Oversight and Crash Data Analysis

The National Highway Traffic Safety Administration (NHTSA) has broad enforcement authority under its originating statute to conduct investigations and gather information to determine whether a vehicle is safe and enforce its regulations. NHTSA periodically updates its Standing General Order 2021-01, which requires manufacturers and operators of vehicles equipped with advanced driver assistance or automated driving systems to report crashes to the agency. Timely notice of incidents is intended to provide NHTSA with information regarding potential safety defects, so the agency can continuously evaluate the safety of these vehicles, including what rules and regulations may be required to enhance safety. The Standing General Order represents a starting point in federally mandated data transparency requirements for manufacturers and operators. Still, advocates are urging the implementation of aviation-style crash data tools that would make crash data accessible to investigators and victims to support legal claims. Manufacturers and operators would be wise to shore up their safety programs and insurance. As autonomous vehicles become more prevalent, liability exposure will grow, and the potential for high-value single-plaintiff litigation as well as class actions is real.

Liability Related to Data Security

Automated driving systems rely on algorithms to digest and analyze massive volumes of data collected from cameras, radar, and lidar to perceive the vehicle’s surroundings and make split-second decisions. Manufacturers and operators should evaluate whether and to what extent the automated driving systems may be susceptible to cyber-attacks and determine measures they can implement to prevent such attacks. Data security breaches could impact vehicle operations in the field and open companies to costly data privacy and security claims from consumers and regulators alike. 

For more information or help with these issues, reach out to the authors or a member of the Consumer Products team.