On the Road With Autonomous Vehicles and the Insurance Industry, Issue No. 3

by Nelson Brown & Co.
Contact

Autonomous Vehicles and Liability

Autonomous vehicles (AVs) promise to deliver greater safety by significantly reducing accidents caused by driver error. However, AVs will not eliminate accidents, and associated liability issues present a new challenge for the insurance industry. Placing control of a vehicle in the hands of technology will change how liability is assessed. How will the law address liability in this evolving landscape?

AV technology presents the question of who is at fault when an AV is involved in an accident – the AV’s human driver or the technology driving the vehicle? The question of human error versus defective vehicle is not unique to AVs. This issue has existed long before the precursors of fully autonomous vehicles, such as cruise control, emerged. A driver can be liable for an accident for failing to brake to avoid a collision just as an auto manufacturer can be held liable if the vehicle’s brakes do not work properly. GM’s ignition system and Toyota’s sudden acceleration problems are prime examples. AV technology changes who is operating a vehicle. Therefore, it changes the driver error versus defective vehicle dynamic. Currently, a driver is responsible for the safe operation of his vehicle, but can escape or limit liability if he proves that fault lies with the vehicle. When the driver surrenders control to an AV, will primary responsibility for safe operation transfer to the vehicle? What responsibility will the driver retain?

New rules and regulations will set many of the parameters for reasonable care in the operation of an AV, but other rules of the road will need to be developed through tort law. It should be anticipated that AV technology will not completely absolve the driver of any potential for liability. A human operator of an AV should be expected to use reasonable care while operating the vehicle, but the standard for reasonable care will need to be defined. What is unreasonable for a driver now could be reasonable for an operator of an AV. For example, a Florida law banning texting while driving provides an exemption if the vehicle is operated by AV technology. Likewise, new standards for reasonable care in the use of AVs will be developed to address issues created by the new technology. For instance, drivers of AVs likely will remain responsible for monitoring the roadway and will be required to take control of the vehicle on short notice. Standards for what is considered reasonable monitoring and whether a driver assumed control promptly enough are to be determined.

In instances where accidents are caused solely by the autonomous operation of a vehicle, responsibility will primarily lie with the manufacturer of the vehicle or of its components. Existing legal concepts such as negligence and products liability provide a framework for how liability will be imposed. However, the standards to be applied to these concepts will depend upon the circumstances.

Liability claims could be brought under products liability law theories such as manufacturing defect, design defect and failure to warn. Picture an AV on a busy highway when a heavy rainstorm suddenly occurs. In response, the vehicle could be required to turn on its headlights and windshield wipers, decrease speed, stop suddenly as a result of other vehicles, detect wet road conditions and adjust braking accordingly, maneuver in response to other vehicles or notify the human driver to assume control of the vehicle. A software glitch that impairs the AVs’ ability to regulate its speed would give rise to a manufacturing defect claim. A design defect could be found if the vehicle’s sensors are not sufficiently effective in heavy rain. A failure to warn claim could arise if the manufacturer did not provide adequate warnings concerning the driver’s need to pay attention to traffic and other conditions and be prepared to assume control when operating the vehicle in autonomous mode.

Advertising of AVs could also create liability exposure. Statements about safety and the level of driver control needed could give rise to misrepresentation and false advertising claims if statements are false or misleading.

Product recalls are another source of manufacturer liability. There is a high potential for recalls to correct or update software given the AVs’ dependence on software and technology that allows the vehicle to process information and react to surrounding circumstances.

New standards for the liability concepts discussed here could come from various sources. The federal government currently has minimum safety standards for non-AVs, and the National Highway Traffic Safety Administration (NHTSA) is conducting research for establishing safety standards for AVs. Federal safety standards likely will influence how liability is addressed under state tort law. State legislation on the use of AVs already exists in some states and will expand. Ultimately, liability on a case by case basis will be determined by state tort law. Regulations and safety standards imposed by state and federal governments will significantly influence standards on which liability is imposed.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nelson Brown & Co. | Attorney Advertising

Written by:

Nelson Brown & Co.
Contact
more
less

Nelson Brown & Co. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.