Trial Magazine

On Feb. 7, AAJ issued a report, Driven to Safety: Robot Cars and the Future of Liability, which explores the legal implications of the robot car revolution and how attorneys can use the civil justice system to ensure that innovation moves in lockstep with accountability. For more information and to download a copy of the report, visit www.justice.org/robotcars.

Thirty-five states have introduced legislation to regulate highly automated vehicles (HAVs)—also known as driverless or robot cars—over the past five years. In most states, legislation stalled, but several states—including California, Florida, Michigan, Nevada, and Tennessee—and the District of Columbia enacted laws establishing rules for testing robot cars.¹ More states will consider legislation on this issue during the 2017 session. But because current law never envisioned driverless cars, unregulated testing is going on across much of the country.²

In September 2016, the U.S. Department of Transportation (DOT) and the National Highway Traffic Safety Administration (NHTSA) issued the first Federal Automated Vehicles Policy. With this policy, NHTSA explicitly promotes the introduction of HAVs. It sets out automaker guidelines for the safe predeployment design, development, and testing of robot cars, and it gives state lawmakers a “model state policy” for permitting testing. The model state policy proposes authority be divided between the federal and state governments and suggests a framework for states to regulate robot car testing and deployment. In this section, NHTSA also invites states to ponder who should be liable in a collision caused by an HAV and what insurance coverage should be mandated.

But NHTSA’s open-ended invitation for legislative policymaking is misguided. Jurors and judges—not legislators—determine liability in auto collision cases, and every state already has the laws necessary to allocate liability for a robot car collision. To the extent that state legislatures have intervened in liability, it hasn’t necessarily promoted safety. For example, Michigan law now absolves car and auto parts manufacturers from liability when their robot car technology is hacked, regardless of what they could or should have done to prevent it.

While we still don’t know what legislation will be introduced in each state, the legislative role in liability questions should be limited to reinforcing a commonsense argument—that manufacturers, not the people who are injured, should bear the costs of injuries caused by robot cars. For example, state legislatures may decide to hold manufacturers strictly liable for harm caused by a robot car. Eventually, states may even decide that compulsory personal automobile liability insurance is obsolete. These requirements developed in response to “judgment-proof” drivers who careened from collision to collision, but that logic no longer applies when the carmaker drives the vehicle.

It remains to be seen whether robot cars will provide the safety benefits the industry claims, but it is clear that trial lawyers will continue to play an important role in ensuring auto safety. AAJ State Affairs is working with trial lawyers and state trial lawyers associations to ensure that plaintiffs can hold manufacturers accountable when robot cars injure and kill.

Daniel Hinkle is AAJ’s state affairs counsel. He can be reached at daniel.hinkle@justice.org. Contact him for more information on the status of robot car legislation in your state.

Notes

1. See, e.g., S.B. 1298, 2011 Reg. Sess. (Calif. 2012); H.B. 1207, 2012 Legislature (Fla. 2012); S.B. 169, 97th Legislature, 2013 Reg. Sess. (Mich. 2013); A.B. 511, 76th Sess. (Nev. 2011); H.B. 1564, 109th Gen. Assemb., 2015 Reg. Sess. (Tenn. 2015); 2011 DC L.B. 931 (NS) (D.C. 2013).
2. Robot car testing is taking place across the country without explicit sanction by any state. International, federal, and state vehicle laws do not prohibit a robot car from driving on the road, and because such conduct is not prohibited, it is permitted. For a comprehensive analysis, see Bryant Walker Smith, Automated Vehicles Are Probably Legal in the United States, 1 Tex. A&M L. Rev. 411 (2014).