A primary question today in automotive litigation is just how far the development of autonomous vehicles will advance and how quickly. While it’s clear that the new technologies will, if used properly, reduce the number of injuries and deaths from motor vehicle crashes, the ultimate question is how far should we go with this technology? Another question is if vehicles are completely autonomous, who will be responsible for accidents and injuries that do occur?
There have been news reports of two Tesla drivers that have died in crashes while their vehicle was in the auto pilot position. In January of 2016, a 23-year-old Chinese man died when his Tesla S model crashed into a road sweeper south of Beijing. Joshua Brown, a 40-year-old, was killed when his Tesla S model crashed into a semi-trailer that had made a turn in front of it. There was a determination that the sensing system failed to distinguish the white side of the trailer against the sky and it did not apply the brakes.
Other questions become even more complicated when you think about the possibility of a purely autonomous vehicle. As an example, we, as drivers, make value decisions every time we get behind the wheel. If a choice is between running over four schoolchildren or swerving and striking one older pedestrian, which choice is better? These are questions that a computer can never be properly programmed to answer, in our opinion.
The National Highway Traffic Safety Administration (NHTSA), which regulates safety of vehicles on the road, is pushing hard to advance the new technologies with the idea that it will promote safety. However, the NHTSA is not ready, in our opinion, to regulate this new technology because it’s so new and advancing so rapidly. While the NHTSA has issued guidelines for enforcement of their authority to regulate these vehicles, there are no regulations currently. There is simply a warning that manufacturers should try to iron out all of the problems with their system before bringing it to market.
However, history teaches us that no matter how much testing or planning occurs, in the real world things happen that are not covered by testing. This oftentimes results in somebody being severely injured or killed. We, as a firm handling products cases for many years, have not yet found any automotive technology to be foolproof. When you look at the Toyota sudden acceleration problem, the Takata airbag problem, and the GM ignition switch litigation, you easily see that there are often flaws in design. Unfortunately, when these design flaws show up, they can appear in large numbers, often resulting in serious injuries or deaths.
Another potential negative issue with this emerging technology is unprotected networks that hackers may access. There will probably be many vulnerabilities to hacking that are yet to be discovered. There is also a question of whether NHTSA actually has authority over cyber security in its role to protect the public from dangerous vehicles. There are numerous legal issues that will have to be resolved as we go forward.
NHTSA has published the Federal Automated Vehicles Policy as a guide to the industry for best practices. This, however, does not equate to rule making. It only recommends a robust design and encourages a strong validation process on the systems.
In summary, while there are amazing new technologies on the horizon that could make us all safer, we foresee additional hidden risks that are yet to be determined. There will also be big legal issues over who has responsibility when those injuries do occur. It will be interesting to watch the development of this new technology over the coming years and the attending legal issues that will arise as a result.
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