"The State of California, which presently does not prohibit or specifically regulate the operation of autonomous vehicles, desires to encourage the current and future development, testing, and operation of autonomous vehicles on the public roads of the state. The state seeks to avoid interrupting these activities while at the same time creating appropriate rules intended to ensure that the testing and operation of autonomous vehicles in the state are conducted in a safe manner."
-California Senate Bill 1298 [i]
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A Game of Catch-Up
Often when a wave of technological innovation sweeps through a particular industry, the technology itself outpaces the regulations built around it. At the moment, it appears that autonomous vehicle technology is in danger of running into this problem. Put another way, the technology will likely have to wait for legislators to catch up and set forth a scheme capable of handling the dynamic issues autonomous vehicles present. In particular, legislators will play a crucial role in shaping various categories of law that are directly related to autonomous vehicles, including civil liability and insurance schemes, traffic laws, and required motor vehicle specifications, to name a few. How quickly legislators are able to formulate these laws will determine how quickly autonomous vehicles reach the roads in mass quantities.
If American legislators are not able to put an agreeable system into place before the technology is ready for the road, autonomous companies could choose to deploy the technology in international markets first. Alternatively, if legislators decide on a system that places significant liability and risk on manufacturers, it could again lead to companies favoring international markets with less burdensome regulatory schemes. When writing laws and adapting to the inevitable changes autonomous vehicles will bring about, American lawmakers would be wise to consult with large European and Asian markets in order to avoid becoming undesirable to the manufacturers.
As it currently stands, laws regulating the use, development, or testing of autonomous vehicles have come almost entirely from the state level.[ii] However, the federal government has not been totally silent, as evidenced by the NHTSA statement from 2013: “NHTSA does not recommend that states authorize the operation of self-driving vehicles for purposes other than testing at this time.”[iii] So, while legislative action has been absent, the issue is clearly on the federal radar.
The same can be said for Europe: currently, there are no laws in place that give a clear indication of the direction lawmakers will take. There are, however, traditional standards that appear to be in conflict with autonomous vehicles, even if they are not directly related to liability:
European road traffic law is based in large parts on the Vienna Convention on Road Traffic of 1968 (VC). Two provisions in particular are under discussion in connection with the introduction of semi-autonomous systems into the law:
• Art. 8 VC stipulates the requirement that a vehicle must have a driver;
• Art. 13 states that a driver must be in control of his vehicle in all circumstances.”[iv]
The Way Forward
There are a number of routes that American and international regulators could go when deciding how to deal with civil liability issues raised by autonomous vehicles and potential crashes. One such theory is products liability. At its core, products liability is a mixture of tort law and contract law.[v] While there are various different theories of products liability, there are only a few that are likely to be used in autonomous vehicle cases.[vi] Strict liability is one such theory. For example, a rule could be put in place such that, when an autonomous vehicle makes a mistake resulting in a crash, the manufacturer is considered liable for the damages even if there is no showing of negligence.[vii] This theory “is based on consumer expectations that products should not be unreasonably dangerous.”[viii] In the strictest sense, this could mean “manufacturers insure users against all harms that come from their product, regardless of fault.”[ix] While this would surely drive up the price of the vehicles, it would also provide manufacturers with additional incentive to ensure that the vehicles are as safe as possible.
So, although regulators and legislators could be largely responsible for the delayed launch of autonomous vehicles available to the general public, they will not be the only ones slowing down the process. Especially if the above theory of products liability is adopted, manufacturers themselves are also expected to be hesitant, and for understandable reasons.[x] A manufacturer in front of the U.S. House of Representatives stated this exact concern in 2013:
What I am specifically referring to, Congressman, is creating an environment where the risk associated with putting these systems on the road is not so prohibitive that it becomes a disabler so that we are not forced to go first to Europe or China or some other location where we have a better environment. That is all we are concerned about.
And I realize that presents some real challenges because it is new territory for all of us, but I think it really will be an enabler if we can find a balance with technologies that have been tested and regulated ultimately and that comply with those regulations to be used in this country without undue burden and risk associated with trying them here first.”[xi]
This concern on the part of manufacturers and developers is legitimate. Even though the United States is a leading market, there is little incentive to release a product that could prove to be a financial disaster due to increased liability and overall uncertainty. In the coming years, it will be important to keep an eye on not only American lawmakers, but also European and Asian markets, to see how they will treat autonomous vehicles and civil liability.
[i] SB-1298 Vehicles: autonomous vehicles: safety and performance requirements (Cal. 2012), available at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201120120SB1298.
[ii] Dorothy J. Glancy, Autonomous and Automated and Connected Cars--Oh My! First Generation Autonomous Cars in the Legal Ecosystem, 16 Minn. J.L. Sci. & Tech. 619, 650 (2015).
[iii] NHTSA, Preliminary Statement of Policy Concerning Automated Vehicles 14.
[iv] Eric Hilgendorf, Autonomous Cars and the Law, Swiss Re Centre for Global Dialogue, Feb. 4, 2015, http://cgd.swissre.com/risk_dialogue_magazine/Autonomous_cars/Autonomous_cars_and_the_law.html.
[v] John Villasenor, Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation, Brookings, April 24, 2014, http://www.brookings.edu/research/papers/2014/04/products-liability-driverless-cars-villasenor.
[ix] James M. Anderson et al., Autonomous Vehicle Technology: A Guide for Policymakers, RAND Corporation 121 (2014).
[x] Id. at 118.
[xi] How Autonomous Vehicles Will Shape the Future of Surface Transportation: Hearing Before the Subcomm. On Highways and Transit of the H. Comm. On Transportation and Infrastructure, 113th Cong. 19 (2013) (statement of Michael J. Robinson, Vice President, Sustainability and Global Regulatory Affairs, General Motors).