This week opened with a tragic story of a woman in Arizona who was killed by an Uber autonomous vehicle. The Tempe police chief made comments that have grabbed the headlines, well half of the quote grabbed headlines…
“I suspect preliminarily it appears that the Uber would likely not be at fault in this accident,” Moir told the Chronicle, adding,
the other part of the quote that is absolutely fascinating and more headline worthy than the first part is:
“I won’t rule out the potential to file charges against the [backup driver] in the Uber vehicle.”
Think about this for a second, the car is not at fault but the backup driver could still be charged. A third party in this scenario is Uber itself, who owns and operates the vehicle, while employing the backup driver. Here’s the thing about vehicle accidents, it not just a matter of who’s fault it is. The Uber autonomous vehicle may not be at fault, but it is not the determination of fault that strictly determines if and how damages are awarded. That is a matter for state vehicle statutes, which are different in every state of the union, the overwhelming majority of which have not been updated to account for fault and liability in an autonomous vehicle scenario.
States are waiting for the Federal government to act precisely because the legal complexity of autonomous vehicles requires a common framework upon which the manufacturers and technology providers can built to.
People are injured, maimed, and killed in vehicle accidents everyday. Autonomous vehicles will reduce that number but it would be supremely naive to believe that these same vehicles would eliminate harm completely. We have a system of common law that determines criminal negligence and penalty, for example you drive under the influence of alcohol and kill someone. In addition to criminal law there exists common law, which most people experience when they are involved in a traffic accident. Under this system of law there are four distinct categories of fault that determine liability:
Negligence: You were careless, as in failed to yield, signal, or do something resonable that would have avoided harm.
Recklessness: You were negligent to a severe degree, as in you were speeding on a wet roadway and ran a stoplight when you hit that bicyclist in the crosswalk.
Intentional misconduct: Drunk driving is intentional misconduct, recklessness with wanton disregard for safety.
Strict liability: Liability for his, her and now “its” actions without regard for fault. You hit that bicylist with your car and despite driving speed limit and observing an abundance of caution, it happened. You are still liable for damages, the degree to which and how much is determined by state law.
Bad things happen to people in the course of daily life and we, as a society, recognize that when damage is done through happenstance and the culmination of events in the moment, someone is going to pay. This is why we have insurance, to provide financial means to make whole that which is not exclusively our fault. To add another dimension to the debate, 12 states have no-fault statutes that basically say it doesn’t matter who is at fault, everyone pays for their own damages. In no-fault states it is still possible to sue a party in an accident for personal injury or grievous damages that go beyond a simple fender bender.
Coming back to the Arizona accident, the vehicle may not be at fault and it may work out that the backup driver is also excused of fault but a woman is dead and someone is still going to pay. What this foreshadows is an entirely new class of insurance that covers vehicles as separate insurable entities, as opposed to the driver, and then seperate insurance for the passengers of a vehicle who have the capacity to control it in an over-ride situation. Providers and manufacturers, to the extent they are unique, will also find themselves in legal jeopardy in ordinary and extraordinary traffic accidents.
However, that last scenario may be moot if the AV Start Act that recently passed in the House also makes it through the Senate and into law. This bill would not prohibit forced arbitration between passengers injured in autonomous vehicles and manufacturers. In other words, you are injured in a Waymo vehicle and the cause is traced to a defect in the software or a hack of the vehicle network by a third party and you could find yourself in forced arbitration with Waymo instead of a court. There are pros and cons to this approach, and rightfully so it does recognize that software and networks are not perfectly designed and operated. However, you should be aware that law is developing in this area and it will affect every consumer, even if you never own an autonomous vehicle.