Product Liability and the Self-Driving Car

by William Mattar | July 7th, 2017

A previous entry took a look at a Brookings Institute paper examining products liability and self-driving cars. That paper, observing that “[a]utonomous vehicles will complicate the . . . entanglements between insurance providers, plaintiffs, drivers/owners named as defendants, and manufacturers,” set forward a number of proposals for state lawmakers.

As a follow up, this entry will explore a related paper that was published in the University of Illinois Journal of Law, Technology and Policy: Sue My Car Not Me: Products Liability and Accidents Involving Autonomous Vehicles.

The article suggests that manufacturers of autonomous technology should be held liable for accidents caused in autonomous mode because the autonomous vehicle probably caused the accident, but liability should “shift back” to the driver depending on the nature of the driver and the ability of that person to prevent the accident.

The author drives home his point by posing four scenarios: the Distracted Driver, the Diminished Capabilities Driver, the Disabled Driver, and the Attentive Driver: The Distracted Driver is the autonomous car user who is not paying attention; it could be someone reading a book . . . using a cell phone, eating a snack, or any other situation. Essentially, the Distracted Driver purposefully engages in a task other than driving, thus relying on the autonomous vehicle completely.

• The Diminished Capabilities Driver is the person whose driving capabilities are diminished for some reason; it could be an elderly person . . . an intoxicated person, or a minor. This person typically would not be driving because of his or her diminished capabilities and would have to rely on others.

• The Disabled Driver is the person who cannot drive a traditional vehicle because of a physical disability, such as blindness or an amputated limb. Thus, the Disabled Driver relies entirely on the autonomous nature of the car in that he or she can take control—just not safely—of the autonomous car in the event of a computer malfunction.

• The Attentive Driver . . . is the user who watches the road and surroundings in the same way he or she would while driving a traditional vehicle. The Attentive Driver may not trust the autonomous ability of the vehicle such that he or she constantly checks that the car is driving correctly, or the Attentive Driver may simply not have any other tasks to address while in the vehicle. The key is that the Attentive Driver has the potential to foresee and prevent accidents, unlike the Distracted, Diminished Capabilities, and Disabled Drivers.

Running through traditional doctrines of products liability as applied to autonomous vehicles, the author addressed whether a car manufacturer could raise a comparative negligence defense—essentially placing some or all of the fault on the “driver” of the autonomous vehicle. The author argues that a comparative negligence system that “require[s] a comparison between the role of the defective vehicle and the role of the plaintiff’s conduct in causing the accident” would undermine the “major purpose” of self-driving cars: to increase societal productivity:

[A] plaintiff who sits behind the wheel and reads a book . . . would be more “negligent” in failing to pay attention to the road than a person . . .who was paying attention to the road. A liability scheme that, for instance, finds the Distracted Driver more liable than the Attentive Driver would impede the ability of consumers to use these vehicles for increased production. Therefore, courts should focus on the ability of the person to prevent the accident, rather than what the driver was doing prior to the accident—otherwise the utility of these vehicles could be greatly diminished.