It seems like yesterday when people felt they couldn’t survive without their beeper or fax machine; we’re talking about the mid-90s, here. Suddenly, smartphones and WiFi hit the market, and the technology changed everything.
Could this happen to the auto industry too?
Did you know, major automobile manufacturers are developing fully autonomous vehicles and plan to have their self-driving cars on the streets by 2020?
This may sound terrific, but let’s consider an actual case example:
In December 2017, Mr. Salazar engaged self-driving mode in his new GM Chevy Bolt and took his hands off the steering wheel. Mr. Nilsson’s motorcycle was directly behind the autonomous vehicle. Salazar commanded his automobile to switch lanes, which it performed accordingly. However, Salazar’s vehicle suddenly and unexpectedly swerved back into the right lane just as Nilsson’s motorcycle attempted to pass. Nilsson hit the ground and suffered harm and injury.
Why did the Bolt’s autonomous system fail and move back into Nilsson’s lane without a command? If Salazar’s automobile was an ordinary vehicle, Nilsson could sue Salazar and GM under negligence theory to recover damages, which is what his accident attorney did.
But, why not file a strict liability claim against GM and the software group that installed the autonomous system as well?
Shifting From Negligence to Strict Liability (harm without fault)
The trouble with filing a negligence claim is the person harmed owns the burden of proving the defendant was at fault.
Wouldn’t it be better just to prove the autonomous car and computer system was defective, and because of this, all parties in the chain of bringing the flawed product to market are strictly liable?
In 2017, a GM Cruise operated an average of 3,576 miles in the self-driving mode before recording its first accident. Now, three-thousand plus miles may seem like a lot of road time, but when considering that today’s autos can endure two-hundred-thousand miles or more, accident risk using GM’s data appears probable.
Hence, law advocates agree the courts should hold autonomous vehicle manufactures strictly liable for any system that fails in their automobiles, which includes malfunctions in self-driving mode.
In fact, Anders Karrberg of Volvo Car Corp admitted to Congress in 2017 that carmakers should accept responsibility for autonomous systems, and that Volvo would be willing to assume product liability if a malfunction occurs in one of their self-driving automobiles.
When we remove the human error element from car collisions, we take the focus off drivers and place it on the safety of autonomous vehicles.
Although plaintiffs are free from proving negligence in a products liability complaint, the party must still show the defective product caused a foreseeable injury. Hence, even if a vehicle’s autonomous computer software is flawed, carmaker attorneys may argue an overriding and intervening cause brought about the injury.
The automotive industry and software developers who design their autonomous computer systems are preparing for the shift from driver liability to product liability.
It’s also a certainty carmaker will be loading their vehicles with cameras and other data tracking software for collision recording purposes. And so, in principle, these so-called “black boxes” may replace human testimony and investigation to identify causation.
Causation defense pleas in products liability claims may include:
- The automated system would have performed the same as a human driver or better under similar circumstances.
- A reasonable update in the vehicle’s computer software would not have prevented the collision.
Strict Liability in a Nutshell
Assuming plaintiffs pass causation barriers, let’s examine the types of strict liability complaints they can file.
- Products Liability
To succeed in a products liability action for autonomous vehicles, the complainant must show (i) the automobile was unreasonably dangerous; (ii) the vehicle was defective when it left the carmaker’s control; and (iii) the defect was the proximate cause of the injuries.
- Breach of Warranty Liability
Alternatively, plaintiffs may argue the injury occurred because they relied on fictitious guarantees created by carmakers or dealers. Autonomous vehicles carry different types of warranties.
Express Warranties: Dealers make promises to prospective buyers when selling their self-driving automobiles. Manufacturers also provide consumers with written vehicle warranties, product details and verbal promises made in their marketing and vehicle ads. These overt words and actions are express warranties.
Implied Warranties: All commercial products carry an implied warranty of merchantability and fitness for a particular purpose. This means every self-driving automobile and its technology must be fit to operate in autonomous mode.
Difficult legal issues lie ahead in figuring out who will be liable for autonomous vehicle collisions.
Accordingly, accident attorneys should consider suing the driver for negligence and filing a strict liability complaint against the manufacturer is until legal precedent tells us who is culpable.
However, you can wager that accident claims will move from negligence to products liability when self-driving cars become the norm and autonomous vehicle technology progresses.