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Driverless cars: Who’s liable in an accident?

May 7, 2013 by Steven M. Gursten

Auto accident attorney discusses crash liability in the future world of driverless cars

Google driverless car

If you could see me now, behind my computer while typing out this post, I would raise my coffee cup to you and drink a toast to my own obsolescence.  How wonderful it will be, hopefully in my children’s lifetime, when the enormous waste of our time, our productivity and our resources, and most especially the tragic cost of human life can all be avoided.  The future world of driverless automated cars holds this promise.  It is a promise that we should all be very excited about.

I was recently asked to speak on this subject.  My own prediction is that this new technology – whether it be one day everyone driving in Google Cars (never count out Google) or something completely different that we can’t even begin to envision today – will take root fastest in the world of large commercial trucks. Today, there is already an acute driver shortage in the trucking industry, and the economics would suggest that this new technology would be adopted in the world of commercial trucking first.

For trucking companies, unlike with people and passenger automobiles, the possibilities of increased profits through increases in productivity and avoiding trucking accidents would be enormous.  Imagine if federal regulations on hours of service rules that detail how long a truck driver can be on duty, or  driver fatigue and even safety risks like sleep apnea and the health of the driver, could all be safely avoided.  A truck would never have to stop until it reached its intended destination.

But there is still quite a ways to go between here and there.

And one day we will  be sharing our roads and highways with “driverless cars,” “driven” by computers, not human beings.

Gov. Rick Snyder has shown serious interest in this prospect, mentioning it in his State of the State address and recently in an interview with the Detroit Free Press.

And, in early February, SB 169 was introduced to clear the way for the “manufacturers of automated technology” to test driverless cars “on the highways or streets of this state …”

Everyone knows both myself and the other lawyers in my law firm focus exclusively on motor vehicle accidents, so the question I immediately get when this subject comes up is always:

Who will be responsible when a driverless car causes a crash?

The answer to that question is going to depend in large part on what the Michigan Legislature, and other state legislatures around the nation, do. It also raises the prospect for the first time on federal legislation that would pre-empt the states to create a consistent and uniform body of laws.

It’s hard to predict, without knowing more about the specifics of how an imaginary, future car crash involving driverless cars would occur.  I’ve also answered this as it applies to Michigan, and this will change depending on the state and if, for example, that state has an owners’ liability statute.

However, for now at least the most obvious options to me would include the following:

  • The driverless car’s owner under Michigan’s Owner Liability Law.
  • The driverless car’s “operator,” i.e., the person who engages the “driverless” technology which allows the car to drive autonomously.
  • The “driverless” car’s manufacturer.
  • The manufacturer of the technology which converts a traditional, driver-required car into a “driverless car.”
  • The “upfitter” or technician or specialist who installs the technology to convert a traditional, driver-required car into a “driverless car.”

Michigan’s Owner Liability Law

Under Michigan’s “Owner Liability” Law,  the “owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law.” (MCL 257.401(1))

As for what “negligent operation of the motor vehicle” means in the driverless car context, we will have to wait and see.

Michigan’s Product Liability Law

To hold a driverless-car manufacturer or the manufacturer of driverless-car-technology liable for an accident, an injured victim would likely have to contend with Michigan’s product liability law, which is strikingly stacked in favor of shielding manufacturers from liability for injuries their products caused.

For instance, manufacturers are presumed to not be liable for injuries caused by their products:

“In a product liability action brought against a manufacturer … for harm allegedly caused by a product, there is a rebuttable presumption that the manufacturer … is not liable if … the aspect of the product that allegedly caused the harm was in compliance with standards relevant to the event causing death or injury …” (MCL 600.2946(4))

And, it’s a very high hurdle that an injured victim must clear in order overcome manufacturers’ broad grant immunity.

A victim must show that the manufacturer:

  • Knew its product was defective;
  • Knew there was a “substantial likelihood” the defect would cause the victim’s injury; and,
  • “[W]illfully disregarded that knowledge in the manufacture and distribution of its product.” (MCL 600.2949a)

The future is coming

In Gov. Rick Snyder’s State of the State address on January 16, 2013, he said he wanted to “make sure we are on the forefront of advances [in] vehicles and opportunity” and, thus, he encouraged “legislation on autonomous vehicles,” which are “vehicles that may not even have people in them,” such as the legislation that has been introduced in California, Florida and Nevada.

On April 15, 2013, Gov. Snyder told Nathan Bomey of the Detroit Free Press that “We should move ahead with autonomous vehicles.” The governor is quoted as saying that driverless or autonomous vehicles are “able to do it faster and better than many of us could as human drivers.”

Not long after Gov. Snyder’s State of the State, SB 169 was introduced in the Michigan Senate, which authorized the road testing of vehicles with “automated technology” that “has the capability to operate the vehicle on which the technology is installed without direct active control or monitoring by a human operator.”

Here’s what the bill says about liability:

“The manufacturer of a vehicle is not civilly liable for damages resulting from the conversion of that vehicle into an automated vehicle by another person or by the installation of equipment by another person to convert it into an automated vehicle, unless the defect alleged was present in the vehicle when it was manufactured.”

As excited as I am by the prospect of a future where the carnage of lives lost and accident victims catastrophically injured from preventable car accidents can all be safely eliminated, let’s face it: that day is not yet here.  And it won’t be anytime soon.

Until then, we do not protect the public by giving negligent manufacturers total civil immunity to liability.  It just creates a perverse incentive system leading to more lives lost. Until we reach that day where I become obsolete, the tort system and lawyers who can investigate and hold negligent manufacturers accountable when the government and regulators cannot or will not (examples include the Ford Pinto and flammable children’s pajamas, and dozens of others) still remains our society’s best protections from here to there.

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One Reply to “Driverless cars: Who’s liable in an accident?”

  1. One way out of this dilemma and also a way to avoid producers from dropping out of the market (like in the example of vaccines) is to allow for contractual arrangements.

    Some cars could be sold with car maker liability and some with driver liability. The price of the car will be different and the price of insurance as well.

    Car makers selling cars with driver liability clauses will offer lower prices but will also have to convince consumers (and reviewers) that the car makes good choices, by running them through stress tests and simulations. Insurance companies will also have incentive to do some research and gather data so that they can charge more for glitchy cars.

    The question does remain: if the contract does not have such an explicit clause, what should be the default. Personally, I would not buy a car with such uncertainty, so I would look for a clear resolution or an explicit clause.

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