When Driverless Cars Crash, Who’s to Blame? Commentary
When Driverless Cars Crash, Who’s to Blame?
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JURIST Guest Columnist Sean M. Cleary of the Law Offices of Sean M. Cleary discusses the difficulty in establishing liability for driverless cars. . .

Driverless cars are one of the most controversial topics that never ceases to raise doubts and concerns. While many of us hope that this is the answer to a less stressful and more responsible driving experience, others fear that the risks brought by these vehicles exceed their advantages.The biggest concern regarding driverless cars is the accident risk that they pose. Are these mechanisms really capable of adapting to any traffic conditions in real time? If not, who will take responsibility for the accidents that might occur? Should we put the blame on the manufacturer, the software developer or the driver who purchased the car and helplessly witnessed an accident or was too distracted to intervene in due time and avoid it?

These answers are hard to come by, even for us lawyers, because this emerging industry isn’t yet regulated by strict federal laws.

What Degree of Autonomy Do These Vehicles Currently Have?
Autonomous Vehicles (AV) are not yet completely independent, but we’re expecting to have fully autonomous cars anytime soon. At the moment, these vehicles still require the involvement of a human driver up to a certain extent. Driverless cars are currently designed to minimize, but not to exclude the driver’s responsibility, presenting certain autonomous features like self-parking, cruise control or anti-lock brakes. Yet, there are few vehicles that can operate independently without a driver’s intervention. Currently, in the US, we are not allowed to commercialize fully autonomous cars. Car manufacturers have to be compliant with approximately 70 safety standards from the Federal Motor Vehicle Safety Standards that regulate vehicle construction, which imply the presence of a licensed driver.

However, technology develops at a fast pace and the laws on self-driving cars are expected to adapt to an imminent reality where cars will operate in complete autonomy. Large manufacturers such as Tesla, Mercedes, Volvo are currently making efforts to develop fully autonomous self-driving vehicles. https://waymo.com is also one of the leading developers in this field and their plan is to build autonomous cars which won’t even be equipped with steering well or brake pedals.

Who’s Guiltier in Case of an Accident?
One of the main benefits of driverless-cars should be the ability to actually reduce the number of accidents. Drunk driving and speed are two of the leading causes of car accidents and, ideally, these habits could be avoided with full automation. Nonetheless, it’s still too early to envisage a future of driverless cars when we are merely in the testing phase. States like Washington [PDF, executive order], Connecticut, and Texas allow self-driving car manufacturers to perform tests in traffic. But this is another argument that gives rise to concerns among local authorities and citizens alike. There have been notable cases when self-driving cars crashed; two of the most striking examples involve cars designed by Google and Tesla. The first manufacturer admitted to being partially responsible for the incident and implemented over 3000 new tests to improve the vehicle’s algorithm. In the second case, Tesla’s Autopilot function was deployed during a car accident that marked the first driverless car fatality. After the investigations, the National Highway Traffic Safety Administration concluded [PDF] that the car’s self-driving system was not at fault because it was not designed to avoid the specific circumstances that lead to the crash.

So, who is really responsible for this type of accidents? The debates between lawmakers, manufacturers and insurance companies that try to figure out how the fault should be divided are still open.

What Does the Law Currently Say?
So far, driving regulations are essentially centered on human drivers. The person who’s driving the automobile is responsible for his or her own safety and the actions that they take in traffic. Drivers are required to be in the right physical and mental state that allows them to control the vehicle appropriately. Therefore, the driver is not allowed to delegate his or her entire responsibility to their vehicle. They must be able to take control of the vehicle at any moment. Yet, after an accident, the liability issue is sometimes hard to tackle because there are several factors that might have caused the damage, including the driver’s negligence, a vehicle manufacturing defect or a bug in the operating system that controls the car. These three potential causes all point out to different authors who might bear some or full responsibility for the accident. Different legal standards should apply to accidents involving driverless cars. The key determiner should be the responsible party that controlled the car when the accident occurred.

However, there’s still room for debate because we are soon expecting highly automated vehicles (HAVs) on our roads. These vehicles aim to take almost full responsibility for what they do in traffic as they will limit the driver’s role to occasional involvement. In this case, the driver will basically be the automated system which should leave little or no liability for the human behind the steering wheel.

New Regulations on Driverless Cars
The Federal Government is making efforts to develop and implement a set of laws regarding driverless cars that can apply across the country. Up to now, these vehicles have had to adapt to the specific rules of each state’s roads. The objective is to have a strict set of laws that can enhance safety in traffic and regulate liability. One of the major steps in this direction was taken last year, in September, when the government issued its first set of standard rules [PDF] regarding the production and sale of driverless cars. These regulations required manufacturers to provide detailed information to the federal authorities. Moreover, the manufacturers, as well as the software providers who design the vehicles’ control system, would be required to pass a safety assessment comprising 15 points. The purpose is to establish whether the vehicles are safe enough to be allowed in traffic.

The latest news in the field of self-driving cars regulations was released last month when the House of Representatives agreed to allow 100,000 autonomous and semi-autonomous test vehicles on the roadways. This step was enabled through a bill called the Highly Automated Vehicle Testing and Deployment Act of 2017 [PDF] which not only raised the number of driverless cars but also exempts manufacturers from traditional safety standards while deploying the cars for testing purposes. More driverless cars on our public roads pose higher accident risks even if they’re here for mere testing purposes. Increasing the number of testing vehicles to 100 000 is not the biggest concern; the typology of the cars that are now allowed in traffic is more disconcerting. We can expect to see completely autonomous cars which are devoid of steering wheels anytime soon on our roads.

With more driverless cars in the traffic and no strict rules to establish the boundaries of liability, we can’t stop doubting whether it’s safe or not to drive among these vehicles. Yet, we can’t develop a legislative framework for autonomous cars before we know what exactly we are dealing with and this requires time, patience and, indeed, trials. Bottom line is that we are still in the early days of adapting our legislation to this dazzling new technology that might change driving as we know it. Where the liability lies in case of an accident is a matter that requires strict analysis and interpretation according to each state’s law.

Sean M. Cleary is a member of the Florida Bar Association since 1998. Mr. Cleary represents people that were injured around the State of Florida in various types of accidents. Besides Bar certification, Mr. Cleary has been included as Florida Super Lawyers and has been named a Florida Rising Star each year since 2009 till present.

Suggested citation: Sean M. Cleary, When Driverless Cars Crash, Who’s to Blame?, JURIST – Professional Commentary, November 4, 2017, http://jurist.org/hotline/2017/11/Sean-Cleary-driverless-cars.php.

This article was prepared for publication by Michael Hutter, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org

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