For general regulation and legislation, see Regulation of self-driving cars Increases in the use of autonomous car technologies (e.g., advanced driver-assistance systems) are causing incremental shifts in the control of driving. Liability for incidents involving self-driving cars is a developing area of law and policy that will determine who is liable when a car causes physical damage to persons or property. As autonomous cars shift the control of driving from humans to autonomous car technology, there is a need for existing liability laws to evolve to reasonably identify the appropriate remedies for damage and injury. As higher levels of autonomy are commercially introduced (SAE automation Levels 3 and 4), the insurance industry may see higher proportions of commercial and product liability lines of business, while the personal automobile insurance line of business shrinks.
Self-driving car liability and self-driving vehicle liability may be impacted by changes in regulation of self-driving vehicles being developing in some countries.
Overview Self-driving car liability is a developing area of law and policy that will determine who is liable when an automated car causes physical damage to persons, or breaks road rules.
Similar considerations may also be raised with other automated vehicles and also with damages other than damage to persons.
When automated cars shift the control of driving from humans to automated car technology the driver will need to consent to share operational responsibility which will require a legal framework.
Driving liability
There may be a need for existing liability laws to evolve in order to fairly identify the parties responsible for damage and injury, and to address the potential for conflicts of interest between human occupants, system operator, insurers, and the public purse. Increases in the use of automated car technologies (e.g. advanced driver-assistance systems) may prompt incremental shifts in this responsibility for driving. It is claimed by proponents to have potential to affect the frequency of road accidents, although it is difficult to assess this claim in the absence of data from substantial actual use. If there was a dramatic improvement in safety, the operators may seek to project their liability for the remaining accidents onto others as part of their reward for the improvement. However, there is no obvious reason why they should escape liability if any such effects were found to be modest or nonexistent, since part of the purpose of such liability is to give an incentive to the party controlling something to do whatever is necessary to avoid it causing harm. Potential users may be reluctant to trust an operator if it seeks to pass its normal liability on to others.
Transition and driver liability
In any case, a well-advised person who is not controlling a car at all (Level 5) would be understandably reluctant to accept liability for something out of their control. And when there is some degree of sharing control possible (Level 3 or 4), a well-advised person would be concerned that the vehicle might try to pass back control at the last seconds before an accident, to pass responsibility and liability back too, but in circumstances where the potential driver has no better prospects of avoiding the crash than the vehicle, since they have not necessarily been paying close attention, and if it is too hard for the very smart car it might be too hard for a human. Since operators, especially those familiar with trying to ignore existing legal obligations (under a motto like 'seek forgiveness, not permission'), such as Waymo or Uber, could be normally expected to try to avoid responsibility to the maximum degree possible, there is potential for attempt to let the operators evade being held liable for accidents while they are in control.
As higher levels of automation are commercially introduced (Level 3 and 4), the insurance industry may see a greater proportion of commercial and product liability lines while personal automobile insurance shrinks.
Fully autonomous driving liability
When it comes to the direction of fully autonomous car liability, torts cannot be ignored. In any car accident the issue of negligence usually arises. In the situation of autonomous cars, negligence would most likely fall on the manufacturer because it would be hard to pin a breach of duty of care on the user who isn't in control of the vehicle. The only time negligence was brought up in an autonomous car lawsuit, there was a settlement between the person struck by the autonomous vehicle and the manufacturer (General Motors). Next, product liability would most likely cause liability to fall on the manufacturer. For an accident to fall under product liability, there needs to be either a defect, failure to provide adequate warnings, or foresee-ability by the manufacturer. Third, is strict liability which in this case is similar to product liability based on the design defect. Based on a Nevada Supreme Court ruling (Ford vs. Trejo) the plaintiff needs to prove failure of the manufacturer to pass the consumer expectation test. That is potentially how the three major torts could function when it comes to autonomous car liability.
Current liability frameworks
Existing tort liability for drivers and insurers and product liability for manufacturer provide the current basis for governing crashes.
Tort liability
There are three basic theories of tort liability: traditional negligence, no-fault liability and strict liability.
Traditional negligence Driver is held liable for harms caused when reasonable care was not taken while in operation of the vehicle No-fault Crash victims are not permitted to sue the driver of the vehicle, unless the injuries resulting from the crash are of a certain severity. Victims are compensated through their own insurance Strict liability Applies for abnormally dangerous or “ultrahazardous” activities. The actors involved consequently bear the associated costs regardless of whether they are legally at fault
According to a National Motor Vehicle Crash Causation Survey, over 90% of the crashes (representing an estimated 2 million crashes in USA) involved the driver as the critical reason for the crash. Meanwhile, research from the Insurance Institute for Highway Safety (IIHS) shows that Advanced Driver-Assistance Systems, which are seen as stepping stones to get to Level 3 and 4 autonomy, have helped reduce collisions by employing forward-collision warnings and automatic braking. Given these trends, the increased use of autonomous vehicle technology could reduce the number of collisions and prevent crash-related deaths. Consequently, cases of traditional negligence will likely fall, and this will, in turn, reduce automobile-insurance costs.
With the onset of fully autonomous cars, it is possible that the need for specialized automobile insurance disappears and that health insurance and homeowner's liability insurance instead cover automobile crashes, much in the same way that they cover bicycle collisions. Moreover, as cases of traditional negligence decrease, no-fault insurance systems appear attractive given their benefits. It would provide compensation to victims relatively quickly, and the compensation would not depend on the identification of a party at-fault. In such systems, individual drivers would be well protected and would encourage the adoption of autonomous cars for their safety and cost-related benefits.
Negligence was the basis for the lawsuit Nilsson vs. General Motors. Nilsson was knocked off his motorcycle when a Chevy Bolt switched into his lane while it was in a self-driving mode. Nilsson sued for negligence based on the self-driving car having (1) a duty to follow traffic laws and regulations, (2) breaching that duty while switching lanes when he was passing, (3) and injuring his neck. The case was settled before it went to court, so the answer to the question "was the error of the self-driving car foreseeable?" still remains unclear.
Product liability
Product liability governs the liability of manufacturers in terms of negligence and strict liability. Negligence Manufacturers must exercise reasonable care in designing their products to be safe under potential use cases Strict liability Manufacturer is held strictly liable for damages even when the manufacturer has exercised all possible care to remove defects
Autonomous car manufacturers are incentivized by possible product liability torts lawsuits to reduce the danger of their products as much as they can within a reasonable cost structure. Strict liability covers an expansive range of potential harms that manufacturers may find challenging to protect against; instead of reducing less cost-effective risks, manufacturers may, to some degree, pass on potential costs of liability to consumers through higher prices.
Furthermore, product liability cases distinguish among various types of defects. Manufacturing defects When the product does not meet the manufacturer's specifications and standards Design defects When foreseeable risks of harm could have been reduced by use of an alternative design Failure to warn When manufacturer fails in its duty to provide instruction about how the product can be safely used and does not provide adequate warning of its risks
Under manufacturing defects, a plaintiff needs to show that the autonomous car failed to work as specified by the manufacturer. In the case of autonomous cars, however, this presents a significant hurdle because no court has applied manufacturing defects to software, which is not something tangible that is manufactured. The wrong performance of the technology system is called “malfunction”, which means that there is a coding error within the system to cause the collisions. When there is a coding error, then the controlling software system may not have functioned as its authors had initially intended. If a crash stems from a software error, then the traditional product liability law on manufacturing defects may not suffice. A greater understanding of how the software will be treated under this liability law, mainly when a software error causes physical parts to malfunction, needs to be explored.
Historically, courts have used two tests for the defectiveness of design: consumer-expectations and cost-benefit.
Consumer-expectations: "A product is defective in design or formulation when it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Moreover, the question of what an ordinary consumer expects in terms of the risks posed by the product is generally one for the trier of fact."
On the other hand, the cost-benefit test weighs the benefits against the costs of a product in determining whether a design is defective. With autonomous cars, the plaintiff could make the argument that a different design, whether in the physical features of the vehicle or in the software that controls the movements of the vehicle, could have made the vehicle safer. For plaintiffs, this creates a high burden of proof and also makes it challenging to find qualified experts.
Imposing liability
In asking "Who do I sue?", a plaintiff in a traditional car crash would assign blame to the driver or the car manufacturer, depending on the cause of the crash. In a crash involving an autonomous car, a plaintiff may have four options to pursue.