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Proceed with caution

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February 2018 - Daniel Hinkle

 

model car on road with circles painted around it

Lawmakers are scrambling to pave the way for driverless cars, but it’s critical to ensure federal and state legal protections for consumers are not compromised in the rush.
 

Driverless cars are here. Vehicles equipped with automated driving systems (ADS) are on our roads, with companies testing their technology in cities across the United States. Uber is testing driverless cars in Pittsburgh and multiple cities in Arizona.1 New York City has approved General Motors to test ­driverless cars on its streets.2 And Waymo, a subsidiary of the same company as Google, recently started testing its driverless minivans in Phoenix.3 While most tests still involve a human test driver monitoring the road, the competition in the driverless revolution is increasing.

This revolution will require some changes in state and federal laws and regulations, which were designed with human drivers in mind. These ­human-centric rules are a roadblock to the deployment of some vehicles equipped with an ­automated driving system. Given the vast economic interests involved, state and federal ­policymakers are moving with deliberate speed to remove barriers for companies pushing this technology onto the roads.

Federal Law Proposals

Since the 1966 National Traffic and Motor Vehicle Safety Act, the federal government has had primary authority over safety standards for motor vehicles. Over the years, the National Highway Traffic Safety Administration (NHTSA) has taken on the role of mandating certain vehicle design features and enacting rules—called Federal Motor Vehicle Safety Standards (FMVSS)—that preempt states from imposing regulations that would interfere with these mandates.

These standards, however, create problems for manufacturers seeking to remove a human driving system from a vehicle. For example, FMVSS 135 requires a braking system that “shall be activated by means of a foot control.”4 This rule would be unnecessary in a vehicle that is only capable of being operated by an automated driving system.

Bowing to industry requests, federal lawmakers and regulators are rushing to make way for driverless vehicles.  NHTSA is considering a rulemaking designed to “identify any unnecessary regulatory barriers” for cars that operate only through an automated driving system.5 Two bills before Congress would clear the way for NHTSA to grant hundreds of thousands of “exemptions” from these FMVSS to manufacturers for ADS-equipped vehicles showing an “equivalent level of safety.”6 The House bill passed in 2017, and the Senate bill was reported out of the Committee on Commerce, Science, and Transportation for consideration by the full Senate.

The legislation before Congress also would broadly preempt states from regulating ADS-equipped vehicles in their design, construction, and performance. The bills demand that the U.S. Department of Transportation regulate these systems soon and that companies submit reports to NHTSA regarding how their vehicles will perform key safety tasks. However, both bills include saving clauses that will preserve common law liability from preemption by any future rulemaking, and the Senate bill goes further by protecting both common law and statutory liability against legislative preemption as well.7 This language is critical to preserving the right to trial by jury for anyone harmed by this experimental technology.

State Law Proposals

While the federal government is guarding its authority over vehicle design, construction, and performance standards, policymakers have consistently reiterated that states retain primary jurisdiction over driver licensing, vehicle registration, traffic regulation, tort liability, and insurance regulation.8 Against that background, 39 states have introduced driverless car legislation over the past six years.9 In most states, the legislation went nowhere or simply resulted in a task force making recommendations. However, some states—California, ­Colorado, Florida, Georgia, Michigan, Nevada, North ­Carolina, Tennessee, and Texas—have passed legislation or proposed rules that would allow the full deployment of these vehicles on state highways.10

These efforts have followed a familiar pattern. First, states must address the primary impediment to allowing ­driverless cars onto the roads—the requirement that all drivers have a license. When the ADS is engaged, any human in the car is no longer considered the “driver.” Therefore, states must either license the entity in control of the ADS or waive the driver’s license requirement for ADS-operated vehicles.

Every state has done the latter, potentially creating a dangerous loophole in our laws. State motor vehicle laws, including criminal statutes and common law regarding liability for collisions, are generally aimed at regulating the person in control of the driving system as the driver of a vehicle. This framework is centuries old and has been affirmed at the federal level, where the United States is a party to the 1949 Geneva Convention on Road Traffic that requires that “every vehicle . . . shall have a driver” that must “at all times be able to control their vehicle.”11

By exempting ADS-operated vehicles from the licensing requirement, states have bought the narrative that these vehicles are truly “driverless” and are starting down the road to unmooring responsibility for following the rules of the road from the entity that controls the vehicle’s driving system. For example, in California, Colorado, Florida, Georgia, and Nevada, the person who “causes the automated driving system to engage” is the “driver” under the statute and is responsible for the criminal or civilly liable behavior of the vehicle.12 Yet the person who “causes” the ADS to engage may not have any control over how the ADS performs the driving task.

Disentangling liability from fault is a dangerous practice: It creates a moral hazard, allowing companies to offload risk onto innocent third parties, and it also violates our sense of decency and justice. While it is possible to read these statutes in a better light—the company with control over the ADS is, after all, the only entity that can truly cause the ADS to engage—such mealymouthed defi-nitions could unnecessarily complicate litigation and could lead courts to assign liability to the wrong parties. For example, courts could find that the person in the car who pushed the “Go” button, but who otherwise had no role to play in the vehicle’s performance of the driving task, is the one who “engaged” the system and is liable as the “driver.”

Many other questions regarding ­driverless cars flow from how states resolve this question about who is the driver. Should the ADS manufacturer be designated on a driverless vehicle’s registration? Does the ADS manufacturer need to obtain a license from the state? Who carries insurance? In what amount? Who is responsible for contacting law enforcement after a collision? What other responsibilities do they have? These questions and more are raised in state legislative proposals that are being debated across the country. While some states have put some preliminary laws on the books, this debate has not been resolved.

It remains to be seen whether ­driverless cars will provide the safety benefits that industry claims, but ­nonetheless, regulators are not waiting to put cars with these systems on the road. Trial lawyers, once again, may be the only people willing to go to court and protect public health and safety. Your participation in these legislative debates is critical to preserving this avenue for justice. AAJ is working with state trial lawyer associations across the country to communicate these issues to lawmakers at every level and to ensure plaintiffs can continue to hold manufacturers accountable when their vehicles injure or kill.


For more information on the status of driverless car legislation in your state or other AAJ efforts on this issue, contact Daniel Hinkle, AAJ senior state affairs counsel, at daniel.hinkle@justice.org.


Notes

  1. Robert Siegel & Art Silverman, Pittsburgh Offers Driving Lessons for Uber’s Autonomous Cars, NPR (Apr. 3, 2017), www.npr.org/sections/alltechconsidered/2017/ 04/03/522099560/pittsburgh-offers-​driving-lessons-for-ubers-autonomous-cars.
  2. Jack Stewart, In New York, Self-Driving Cars Get Ready to Face the Bullies, Wired (Oct. 22, 2017), www.wired.com/story/gm-cruise-self-driving-cars-nyc-manhattan/.
  3. Alex Davies, Waymo Has Taken the Human Out of Its Self-Driving Cars, Wired (Nov. 7, 2017), www.wired.com/story/waymo-​google-arizona-phoenix-driverless-self-driving-cars/.
  4. 49 C.F.R. §571.135(S5.3.1). 
  5. U.S. Dep’t of Transp. Report on DOT Significant Rulmakings, Removing Unnecessary Regulatory Barriers to Automated Safety Technologies, at 69 (Oct. 2017), www.transportation.gov/regulations/report-on-significant-rulemakings.
  6. SELF DRIVE Act, H.R. 3388, 115th Cong. (2017); AV START Act, S. 1885, 115th Cong. (2017). 
  7. See id
  8. See Nat’l Highway Traffic Safety Admin., Automated Driving Systems 2.0: A Vision for Safety (Sept. 6, 2017), https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf
  9. For a list, see Nat’l Conf. State Legislatures, Autonomous Vehicles—Self-Driving Vehicles Enacted Legislation, www.ncsl.org/research/transportation/autonomous-vehicles-self-driving-vehicles-enacted-legislation.aspx.
  10. Cal. Veh. Code §38750; Cal. Code Reg. tit. 13, div. 1, ch. 1, art. 3.7 (proposed regulations are available at https://www.dmv.ca.gov/portal/dmv/detail/vr/autonomous/auto); S. Res. 17-213, 71st Gen. Assemb., Reg. Sess. (Colo. 2017); Fla. Stat. §§316.85-86, 319.145; S. Res. 219, Gen. Assemb., Reg. Sess. (Ga. 2017); S.B. 151, 110th Reg. Sess. (Tenn. 2017); S.B. 2205, 85th Leg. (Tex. 2017); Mich. Comp. Laws §§257.2b, 257.601a, 257.602b, 257.606b, 257.643, 257.643a, 257.665, 257.665a, 257.665b, and 600.2949b; Nev. Rev. Stat, ch. 482A, ch. 372B, §§484A.080, 484B.127, 484.165, and 706.011 to 706.791; H.R. 469, Gen. Assemb. (N.C. 2017).
  11. Geneva Convention on Road Traffic, Sept. 19, 1949.
  12. Cal. Code Reg. tit. 13, div. 1, ch. 1, art. 3.7; S. Res. 17-213, 71st Gen. Assemb., Reg. Sess. (Colo. 2017); Fla. Stat. §316.85; S. Res. 219, Gen. Assemb., Reg. Sess. (Ga. 2017); Nev. Rev. Stat, §484A.080.