Full disclosure # 1: I, the author of this blog post, am a trial lawyer. Full disclosure # 2: The law firm that allows the publication of this blog post has many, many, many more trial lawyers. Without disputes that could go to trial, we all need to find more work.
Of course, this also means that we like to argue. Thankfully, we can now argue about whether autonomous vehicles will lead to a large wave of lawsuits. The fear of a crushing legal liability underpins a proposal published on Slate “to limit liability in some fashion to avoid the chilling effect [of] excessive litigation” once everyone drives autonomous vehicles. What that article misses is that the result of autonomous vehicles being ubiquitous will almost certainly be fewer lawsuits, which are also much simpler because they will not involve a defense of “driver error.”
Let’s start with the basic statistics from the article: “if we achieved 90 percent adoption, the group estimates almost 22,000 lives would be saved yearly, and society would garner a staggering $350 billion in cost savings.” That is all through a drastically reduced number of accidents. As the article notes, “It doesn’t seem outlandish to predict that the majority of these tragedies could be avoided if autonomous systems took over the job of driving for us.” In fact, “94 percent of all those accidents are caused by human error.” A 94 percent reduction in the number of accidents will almost certainly have a corresponding reduction in the number of lawsuits.
Moreover, if human error is not the cause of the accidents, some other error must be. As the Dashboard wrote months ago:
The same will be true when a driver is in autonomous mode. You think the car literally drives itself magically? No. A combination of hardware, software and/or mechanical connections drive the car. Algorithms that most of us can barely comprehend, let alone understand or explain, are going to make the decisions on how the autonomous vehicle reacts in a given situation. If that algorithm makes a decision that causes an accident, or if it works in a manner inconsistent with an applicable standard of care (most likely debated through expert testimony), then there could be liability.
So, now we have fewer overall lawsuits. Of those fewer lawsuits, almost none are the result of human error. This means that the only lawsuits left – the only possible disputes – are between those who designed/manufactured the hardware, software and/or mechanical connections in the car. The driver and passengers are almost incapable of error/fault in an autonomous vehicle (there will surely be exceptions).
The fact of the matter is that lawsuits are already coming over who designed/manufactured the hardware, software and/or mechanical connections in the car. The number of software related recalls has tripled in the past 4 years. This trend line will not go down as more and more software finds its way into a vehicle to actually drive the autonomous vehicle.
Fewer accidents will mean fewer lawsuits. Absent a spike in lawsuits, there will be no crushing cost of defending against product liability claims. In fact, anyone who makes a living litigating disputes arising out of vehicle accidents likely needs to find a new area of expertise once autonomous vehicles dominate the roadways.