DON'T SUE ME, I WAS JUST LAWFULLY TEXTING & DRUNK

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175

DON’T SUE ME, I WAS JUST LAWFULLY

TEXTING & DRUNK WHEN MY

AUTONOMOUS CAR CRASHED INTO YOU



Have you ever sent a text message that did not reach its destination?

Ever follow Google Maps directions that proved inaccurate? Driven in a

foreign country, scrupulously obeying the Queen’s English GPS voice

ordering you to “turn right, turn right, turn right!” against your better

judgment, until you almost run over the unsuspecting pedestrians lingering

in what was once a roadway, but is now a car-free square?

Imagine sitting in the backseat of your car, having a cocktail, texting

your friends, while lawfully being driven, not by Jeeves your chauffeur, but

perhaps by Google Chauffeur,

the technology operating your ride, what is

now called an “autonomous vehicle.”

Autonomous cars are fully

automated vehicles not yet available to the public, as opposed to presently

available luxury cars that have only some automated functionality but that

are not fully “autonomous” (semi-autonomous).

 The author would like to thank Jeffrey K. Gurney, author of Sue My Car Not Me:

Products Liability And Accidents Involving Autonomous Vehicles U. ILL. J.L. TECH. & POL’Y 247

(2013) for the title inspiration for this Comment.

1. For every major smart phone, at one point or another, there is an issue concerning text

messages not going through. See, e.g., Matthew J. Belvedere, Fix for iOS 7 Users Having

Problems with Texting, CNBC (Oct. 1, 2013, 1:11 PM), http://www.cnbc.com/id/101077494; Text

Messages Not Going Through?, Question posted on Discussions, VERIZON WIRELESS,

https://community.verizonwireless.com/thread/802562 (last visited Mar. 20, 2014); Text Messages

Not Going Through to Certain People?, Question posted on Android Tech Support Forum,

DROIDFORUMS.NET, http://www.droidforums.net/forum/rescue-squad-help/28556-texts-messages-

not-going-through-certain-people.html (last visited Mar. 20, 2014).

2. Google Chauffeur is the company’s autonomous driving software. Adam Fisher, Inside

Google’s Quest to Popularize Self-Driving Cars, POPULAR SCIENCE, Oct., 2013, available at

http://www.popsci.com/cars/article/2013-09/google-self-driving-car. Google employees have

driven over half a million miles testing the company’s self-driving cars that include a modified

Cadillac and Lexus. RAND CORP., AUTONOMOUS VEHICLE TECHNOLOGY, Research Briefs

(2014), available at http://www.rand.org/content/dam/rand/pubs/research_briefs/RB9700/

RB9755/RAND_RB9755.pdf [hereinafter AUTONOMOUS VEHICLE TECHNOLOGY].

3. See id.

4. See NAT’L HIGHWAY TRAFFIC SAFETY ADMINISTRATION, PRELIMINARY STATEMENT

OF POLICY CONCERNING AUTOMATED VEHICLES 3-5 (2013), available at www.nhtsa.gov

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176 SOUTHWESTERN LAW REVIEW [Vol. 44

INTRODUCTION

No longer limited to the creative vision of science fiction, robotic and

computerized automated cars (autonomous cars) are real and they are on the

roads, at least, so far, for example, on Highway 1 between San Francisco

and Los Angeles, in part thanks to Google.

While the potential of the new

technology is alluring,

in light of the frequency of basic technological

failures noted above, one must anticipate serious problems involving

liability when autonomous cars become available on the market.

Presumably, the cars, which are being developed and tested now, will

become available for purchase when they have achieved acceptable safety

standards.

Determining the party at fault is an issue that threatens to

burden innocent injured parties in accidents with autonomous vehicles.

Will liability be attributed to the manufacturer of the autonomous car or the

human operator? How will the party injured in an autonomous car accident

pursue her claim? A prophylactic resolution and rule of liability that

protects the nascent technology as well as the public should be the goal.

/staticfiles/rulemaking/pdf/Automated_Vehicles_Policy.pdf. In the United States, the National

Highway Traffic Safety Administration (“NHTSA”) defined “automated vehicles” as “those in

which at least some aspects of a safety-critical control function (e.g., steering, throttle, or braking)

occur without driver input. Vehicles that provide safety warnings to drivers (forward crash

warning, for example) but do not perform a control function are, in this context, not considered

automated, even though the technology necessary to provide that warning involves varying

degrees of automation (e.g. the necessary data are received and processed, and the warning is

given, without driver input).” NHTSA also explains that “[a]utomated vehicles may use on-board

sensors, cameras, GPS, and telecommunications to obtain information in order to make their own

judgments regarding safety-critical situations and act appropriately by effectuating control at some

level.” Id. at 3. Use of V2V (vehicle-to-vehicle) safety technology that only provides safety

warnings does not define a car as autonomous even though such warnings are very beneficial and

autonomous cars may utilize V2V as well. Id. at 3-4. The NHTSA established a classification

system of five levels ranging from “Level 0” (no automation) whereby the “driver is in complete

and sole control of the primary vehicles controls (brake, steering, throttle, and motive power) at all

times,” etc. and “Level 4 – Full Self-Driving Automation” where the “vehicle is designed to

perform all safety-critical driving functions and monitor roadway conditions for an entire trip.

[T]he driver will provide destination or navigation input, but is not expected to be available for

control at any time during the trip. . . . By design, safe operation rests solely on the automated

vehicle system.” Id. at 4-5.

5. John Markoff, Google Lobbies Nevada to Allow Driverless Cars, N.Y. TIMES, May 10,

2011, at A18, available at http://www.nytimes.com/2011/05/11/science/11drive.html?_r=2&

emc=eta1&.; Chris Bruce, Google’s Self-Driving Car Gets Better At Navigating Streets,

AUTOBLOG AOL AUTOS (April 28, 2014, 7:30 PM), http://www.autoblog.com/2014/04/28/

googles-self-driving-car-better-navigating-city-streets/.

6. See infra Part I.

7. Nissan has, since first announcing a 2020 release, delayed its planned release date as it

perfects the technology, in the meantime releasing semi-autonomous vehicles. Rakesh Datt,

Nissan Reveals Details of Autonomous Car Project, INDIAN CARS BIKE.IN (July 19, 2014),

http://www.indiancarsbikes.in/cars/nissan-reveals-details-autonomous-car-project-95357/.

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This Comment urges solutions that go beyond defaulting to relying on the

freedom to litigate at the parties’ expense.

Part I of this Comment lays the foundation for assessing legal liability

problems associated with autonomous vehicles. Part I also summarizes: 1)

the existing technology involved with autonomous cars, 2) their present

functionality and purpose, 3) their safety profile and the plans for these cars

being on the market as compared to traditional vehicles, and 4) the problem

of assessing liability in accidents involving autonomous vehicles. Part II

explains the current state of legislation covering autonomous vehicles in the

testing phase, and recommends greater uniformity in legislation. Part III A

of this Comment addresses the legal challenges associated with claims

brought by non-user injured parties when the injury more likely results from

general negligence than from more clear cut strict products liability issues

such as: design defect, manufacture defect, and warning defects. Part III B

addresses the potential plaintiff’s burden of proof, litigation costs, and

discovery issues. Part IV of this Comment offers three types of solutions

intended to collectively address these issues, especially during the “Interim

Period.”

The proposed solutions are: 1) creating a negligence per se legal

standard

that imposes liability for negligence depending on the nature

marketing and warnings information of the autonomous vehicle; 2) a

legislative requirement of mandatory “No Fault” insurance policy

coverage involving a government/manufacturer scheme that both requires a

high degree of coverage but also allows manufacturers to secure such

policies in bulk so as to bring costs down for the consumer; and 3)

legislative requirements and judicial involvement to streamline discovery

related to the vehicle’s software and hardware (e.g., the black box) in order

make such information immediately accessible upon accident reporting in

order to accurately determine causation. In addition, Part IV argues that

federal and state governments, in order to support this nascent and

promising innovation and industry, should offer tax rebates/incentives as

was done for electric vehicles. In conclusion, this Comment summarizes

the key liability and other general safety issues autonomous vehicles raise

and suggests solutions accordingly.

8. The “Interim Period” in this Comment refers to the interim time between when

autonomous cars are introduced into the marketplace and when there is enough market saturation

that their safety profile is based on actual driving statistics rather than predictive models.

9. For a discussion of negligence per se, see infra Part IV.

10. What Does No-Fault Insurance Cover?, ALLSTATE (Jan. 2013), http://www.allstate.com/

tools-and-resources/car-insurance/no-fault-insurance-cover.aspx.

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178 SOUTHWESTERN LAW REVIEW [Vol. 44

PART I

A. The Autonomous Car, The Problem

Given that we all have experienced technological and computer

systems failures regularly, why should we trust that cars operated by

computing systems and other technologies will be consistently safe? What

about the poor soul driving a regular car, or even walking, who gets hit by

an autonomous car? What if the cause of the accident cannot be traced to

an overt mechanical failure such as brakes or steering,

rather, it is due to

plain old bad driving or mistake? While autonomous cars are designed to

mitigate and even eliminate bad driving,

technology is imperfect and often

only as good as the humans either programming it, feeding it information,

or operating it.

Accidents will happen, regardless of the steps taken to

prevent them,

simply because of mistaken decisions or carelessness that

may happen by the car itself (due to its programming of mechanical

11. Toyota is an example of an automaker with several products liability legal losses

connected to specific parts or functionality such as defective steering and brakes/acceleration. See

Dan Strumpf & Shino Yuasa, Toyota Subpoenaed by Federal Grand Jury, HUFFINGTON POST

(Sept. 19, 2010, 5:12 AM), http://www.huffingtonpost.com/2010/07/20/toyota-subpoenaed-by-

fede_n_652311.html; Shaya Tayefe Mohajer, Toyota Settlement: Orange County to Receive $16

Million over Acceleration, Braking Issues, HUFFINGTON POST (Apr. 6, 2013, 7:44 PM),

http://www.huffingtonpost.com/2013/04/06/toyota-settlement-orange-county_n_3029193.html.

12. See Phil LeBeau, Google’s Driverless Car Is Good News for Bad Drivers, CNBC (May

28, 2014, 1:56 AM), http://www.cnbc.com/id/101708805#.

13. The Space Shuttle Challenger O-ring disaster is a perfect example of how great

engineering was yet unfortunately not sufficiently tested in the ultimate environment

(temperature) it was required to perform in. See Joe Atkinson, Engineer Who Opposed Challenger

Launch Offers Personal Look at Tragedy, NASA (Oct. 05, 2012), http://www.nasa.gov/

centers/langley/news/researchernews/rn_Colloquium1012.html; Space Shuttle Challenger

Disaster, WIKIPEDIA, http://en.wikipedia.org/wiki/Space_Shuttle_Challenger_ disaster (last

visited Sept. 11, 2014).

14. While reporting of autonomous car accidents is hard to come by, that is the result of the

fact that few are being driven and only in test mode. For example, Google regularly tests one of

its couple dozen prototypes in Mountain View California. A journalist along for one of the

reportedly smooth test drives observed the car emitting lasers that generate 3D information on

objects all around the car and using radar that bounces approximately 150 meters in every

direction to perceive more than any human could. Eric Jaffe, The First Look at How Google’s

Self-Driving Car Handles City Streets, CITYLAB (Apr. 28, 2014), http://www.citylab.com/tech/

2014/04/first-look-how-googles-self-driving-car-handles-city-streets/8977/. The technology

credentials are impressive to be sure and the Google cars go through six steps before making each

driving decision utilizing a combination of GPS, cameras, sensors, laser, radar, maps, etc. at its

disposal. Id. Although Chris Urmson, the head of Google’s self-driving car project (Google X),

is confident that autonomous cars can change the world by lightening road congestion, increasing

commute productivity, and significantly mitigating the 33,000 annual deaths on U.S. roads (90%

of which result from human error), there is no accounting for the regularity of simple computer

and other technological failures, any one of which can cause an accident instantly. Id.

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limitations), not the driver.

Whose fault is it if the accident is due to, what

essentially comes down to general negligence and the human operator never

even touched the wheel? The autonomous car manufacturer, or the human

“driver” who is not even driving?

The autonomous car is coming.

This Comment addresses liability

issues that affect non-driver/user-third party victims, meaning people who

are not choosing to use the autonomous vehicle, but who are injured in an

accident that is resolved to be the fault of the other party (the human using

the autonomous car in autonomous car-mode). There are other analyses of

liability issues concerning autonomous vehicles, a lot of popular press

discussion as well, and even a course already at Stanford Law School.

This Comment, in focusing on non-user injured parties, analyzes the

inevitable problem of complications involved in assessing general

negligence regarding a product that is designed to operate itself, for the

most part.

Does liability for negligence fall on the user of the technology

15. See infra notes 26-28 and accompanying text (discussing and citing statistics regarding

accidents being mostly due to human behavior, not vehicle products malfunctioning).

16. Cars that will drive themselves are predicted to enter the marketplace by approximately

2017 in Sweden and 2020 (or soon after) via Nissan in Japan and in the U.S. via Google, Ford,

and others, expected to saturate the car market with autonomous vehicles by 2035. See Sweden

Joins Race for Self-Driving Cars, PHYS.ORG (Dec. 2, 2013), http://phys.org/news/2013-12-

sweden-self-driving-cars.pdf (Volvo, a Swedish brand now owned by a Chinese company,

announced it will roll out a hundred self-driving cars on the public roads of Gothenburg Sweden

in 2017); see also Alexis Santos, Nissan Leaf Prototype Becomes First Autonomous Car to Hit

Japanese Highways, ENGADGET (Nov. 26, 2013), http://www.engadget.com/2013/11/26/nissan-

leaf-is-first-autonomous-car-on-japanese-public-roads/; Press Release, Autonomous Vehicles Will

Surpass 95 Million in Annual Sales by 2035, NAVIGANT RESEARCH (Aug. 21, 2013),

http://www.navigantresearch.com/newsroom/autonomous-vehicles-will-surpass-95-million-in-

annual-sales-by-2035 [hereinafter Navigant Research Press Release]. Navigant Research (a

market research consulting team) predicts that autonomous vehicles will slowly enter the

marketplace over the next two decades and that by 2035 sales will reach 95.4 million annually,

representing 75% of all light-duty vehicle sales. As of June 2014, experts predict that autonomous

cars will be on the market within ten to fifteen years. See Neil Winton, Autonomous Cars Like the

Google May Be Viable in Less Than 10 Years, FORBES (June 6, 2014, 1:23 PM),

http://www.forbes.com/sites/neilwinton/2014/06/06/autonomous-cars-like-the-google-may-be-

viable-in-less-than-10-years/.

17. See, e.g., Jeffrey K. Gurney, Sue My Car Not Me: Products Liability and Accidents

Involving Autonomous Vehicles, 2013 U. ILL. J. L. TECH. & POL’Y 247 (2013) (a products liability

analysis regarding autonomous cars); Bryant W. Smith, Stanford Students: Fall 2012 Course on

the Law of Autonomous Driving, STAN. L. SCHOOL, CTR. FOR INTERNET & SOC’Y BLOG (July 10,

2012, 6:16 PM), http://cyberlaw.stanford.edu/blog/2012/07/stanford-students-fall-2012-course-

law-autonomous-driving. Stanford’s student body, along with researchers and corporate partners,

is very focused on developing autonomous car technology. STANFORD’S AUTONOMOUS DRIVING

TEAM, http://driving.stanford.edu (last visited Aug. 8, 2014).

18. Autonomous cars may be designed to adjust for the human driver’s attentiveness. Volvo

is testing sensors that detect distracted or sleepy drivers. The technology uses a:

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180 SOUTHWESTERN LAW REVIEW [Vol. 44

because she has chosen to use it prior to it becoming commonly used and

proven to be safe in regular use? Or, is the manufacture liable for creating

the product and marketing its use?

Should the mere fact of “driving” an

autonomous car be considered an “Inherently/Abnormally Dangerous

Activity” or should the cars themselves be considered “inherently

dangerous” for purposes of tort liability?

Alternatively, should the car be

considered an agent of the owner?

Or, is the owner responsible for what

the car does in the same way a dog “owner” would be if Kujo bit a

neighbor?

This Comment argues a need to draw a line in determining liability in

advance of autonomous cars’ release onto the market. A line based on the

consumer’s information from the manufacturer about what the autonomous

cars are meant to be, how they are meant to work, and then, what the

consumer did based on that information. The key to the analysis is

assigning liability appropriately to a driver or car manufacturer based on

whether it would be foreseeable and reasonable for a consumer/driver to be

hands-free in driving and how the driver handled the car in light of the

information given by the manufacturer and the circumstances surrounding

the driving and ensuing accident.

[D]ashboard-mounted sensor that captures information from infrared light projected on the

driver’s face. Although invisible to the human eye, the infrared light helps the sensor detect

things such as whether eyes are open or closes, the position of the driver’s head and whether

he or she is looking straight ahead, down at the dashboard controls or out of one of the side

windows.

Staff, Relaxnews, Volvo Tests Sensor System That Detects Distracted Drivers, TWINCITIES.COM

(Mar. 18, 2014, 11:07 AM), http://www.twincities.com/breakingnews/ci_25366714/volvo-tests-

sensor-system-that-detects-distracted-drivers; see also Antony Ingram, Volvo Gets Serious on

Driver Sensing Tech, MOTOR AUTHORITY (Mar. 17, 2014), http://www.motorauthority.com/news/

1090918_volvo-gets-serious-on-driver-sensing-tech. And the car’s technology would adapt to the

driver’s status and support the driver’s driving accordingly. Id.

19. This assumes there is no intervening action breaking the chain or causation or some

extreme unforeseeable misuse by the human car-owner. In products liability cases only extreme

foreseeable misuse excuses the manufacturer from liability. See Soule v. General Motors Corp.,

882 P.2d 298 (Cal. 1994) (a landmark California Supreme Court case noting car manufacturers are

liable for injuries that result from reasonable use); see also 63A AM. JUR. 2d Products Liability

§ 898 (West 2010).

20. Compare RESTATEMENT (SECOND) OF TORTS § 3885-391 (1965) (stating an activity is

considered “inherently dangerous” or “ultrahazardous” when it presents an inherent special

danger), with § 402A cmt. j (clarifying that sellers are liable for defective conditions that make a

product unreasonably dangerous to the regular consumer or user). The former imposes strict

liability on the actor for an activity that is deemed to create a serious risk of harm even if

performed safely, whereas the latter imposes liability on the maker of a product that poses a

serious risk of harm.

21. “A principal who conducts an activity through an agent is subject to liability for harm to

a third person caused by the agent’s conduct if the harm was caused by the principal’s negligence

in selecting, training, retaining, supervising, or otherwise controlling the agent.” RESTATEMENT

(THIRD) OF AGENCY § 7.05 (2006).

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The problem in assessing liability addressed here concerns the accident

that occurred, not because of a clear malfunction cause such as breaks

failure or cruise control dysfunction, but as a result of merely driving

negligently. This Comment asks, who drove negligently? Was it the car, or

the driver? The issue arises from the nebulousness surrounding the nature

of the defect, in distinguishing between design defect and manufacturing

defect when the failure is in software/programming, and its engagement

with mechanical functionality.

There will be social costs to the autonomous cars if injured non-users

will ultimately face extra burdens in making their showing of negligence,

including the increased costs in analyzing evidence in order to put on their

case in chief. Extra costs will likely accrue due to the complicated nature of

assessing negligence or product liability when dealing with a hybrid of

computer technology, mechanical parts, and a deliberately inattentive

passive human actor who is nevertheless the only human in control of an

inherently dangerous product, a moving automobile.

This Comment urges a balance between facilitating the development of

a new beneficial technology and public protection of non-users of the

technology by insuring that they are not unfairly forced to bear the societal

costs of the new technology. If not addressed preemptively, there will be

too much room for subjectivity and lack of uniformity in courtrooms.

Additionally, there is a need for uniformity with regard to insurance

policies and companies’ evaluations of the technology and associated

allocation of risks and liabilities. There will be too much potential for harm

to individuals who do not even choose, or cannot even afford the early

adoption of new beneficial technology. It is critical these issues be resolved

prophylactically for the most just and cost-efficient results without

burdening this important nascent technology. To answer the questions this

Comment poses, one must first have an understanding of the autonomous

cars, the needs they meet, and how they will work.

B. The Autonomous Car: Purpose, Goals, and the Technological

Advantages

Google Chauffeur, the software that operates the self-driving vehicle, is

not the first of its kind. There have been earlier forms of self-driving cars in

22. Examples of negligent driving violations are: disobeying or misconstruing a traffic

officer’s directions, not noticing the speeding limit changed in a school district, hitting a car

pulling out of a parking spot, driving too closely, driving too slow, etc. For a sample list, see the

California Department of Motor Vehicle’s website. Vehicle Code Violations Used in Negligent

Operator Counts, CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, http://www.dmv.ca.gov/dl/

vioptct.htm (last visited Sept. 13, 2014).

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182 SOUTHWESTERN LAW REVIEW [Vol. 44

the 1970s, but the contemporary models, in part thanks to the Department

of Defense’s Defense Advanced Research Project Agency (“DARPA”),

use reliable laser range finders, essentially all-seeing eyes.

Is there any

consequence to losing the human driver’s instinctual skills based on “thin-

slicing” and instinctively decoding patterns that lead to split-second

decisions?

Or will, as predicted, autonomous cars actually be much safer

than human drivers in real world every day city and highway driving?

These questions can only be answered once the autonomous cars are on the

road and by comparison to traditional automotive experiences.

C. Traditional Vehicle and Driver Safety

After six consecutive years of a decline in motor vehicle crash

fatalities, 2012 saw an increase resulting in a total of 33,561 deaths due to

car crashes.

Alcohol-impaired driving accidents cost more than an

estimated $37 billion annually and approximately one person an hour dies

as a result of a drunk-driving car crash.

Human error reportedly accounts

for over a million injuries on roads annually.

Car accident analysis shows

that 95% of the accidents are caused by human error and the “main error

prone behaviors are wrong estimation of control variables, command

23. Overview, DARPA GRAND CHALLENGE, http://archive.darpa.mil/grandchallenge05/

overview.html (last updated Dec. 31, 2007).

24. Fisher, supra note 2.

25. “Thin Slicing” is a psychological term used to describe pattern recognition and the

ability to make quick decisions based on pattern recognition that is based on experience or

unconscious instinct. See MALCOM GLADWELL, BLINK 24 (2007); see also Nalini Ambady &

Robert Rosenthal, Thin Slices of Expressive Behavior as Predictors of Interpersonal

Consequences: A Meta-Analysis, 111 PSYCHOL. BULL. 256 (1992). It stands to reason that

autonomous technology will encourage drivers to not pay attention, even if required to and cars

are only semi-autonomous. See Brad Feld, The Future of Transportation, FELDTHOUGHTS (Jan.

19, 2014), http://www.feld.com/wp/archives/2014/01/the-future-of-transportation.html. Even

airline pilots fall asleep when autopilot is on so, naturally, we can assume, human drivers will be

driven to distraction. See id.; see also Press Association, Airbus Pilots Fell Asleep at Same Time,

Says Incident Report, THE GUARDIAN (Sept 26, 2013), http://www.theguardian.com/world/

2013/sep/26/airbus-pilots-asleep-autopilot-caa.

26. Tom Simonite, Data Shows Google’s Robot Cars Are Smoother, Safer Drivers Than You

or I, MIT TECHNOLOGY REVIEW (Oct. 25, 2013), http://www.technologyreview.com/news/

520746/data-shows-googles-robot-cars-are-smoother-safer-drivers-than-you-or-i/.

27. U.S. DEP’T OF TRANSP. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., 2012 MOTOR

VEHICLE CRASHES: OVERVIEW 1 (Nov. 2013), available at http://www-nrd.nhtsa.dot.gov/Pubs/

811856.pdf.

28. Impaired Driving, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., http://www.nhtsa.gov/

Impaired (last visited Sept. 13, 2014) [hereinafter Impaired Driving].

29. John Markoff, Collision in the Making Between Self-Driving Cars and How the World

Works, N.Y. TIMES, Jan. 24, 2012, at B6, available at http:// www.nytimes.com/2012/01/24/

technology/googles-autonomous-vehicles-draw-skepticism-at-legal-symposium.html.

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2014] DON’ T S U E ME 183

variables . . . and the fact that a driver can only concentrate on just one area

at a certain time.”

The government attributes 3,328 deaths to distracted

driving crashes and considers the trend a “dangerous epidemic.”

A 100-

car study revealed that driver inattention (e.g., distractions by objects

outside the vehicle, operating radio or CD, passenger, eating, smoking,

drinking, phone calls) caused nearly eighty percent (80%) of all crashes and

sixty-five percent (65%) of all near crashes involved driver inattention just

prior to (within 3-seconds) the near-collision.

A few key automated

solutions, such as forward collision and lane-departure warning, side-view

(blind-spot) assist, and adaptive headlight, would make a dramatic

difference, reducing crashes by approximately 33%.

D. Potential Benefits of the Autonomous Car

The benefits of autonomous vehicles include reduction in frequency of

crashes because “[f]urther automation is expected to save more lives . . .

Automatic braking when a car detects an obstacle will reduce rear-end

collisions, and fully driverless cars will dramatically reduce human error,

which is responsible for most fatalities and crashes.”

Additional benefits

include: increased mobility for the disabled, reduced energy and fuel

emissions due to lighter more fuel efficient cars, and improved land use via

vehicle-sharing programs and dropping passengers off.

A bonus, the

reduction “in traffic accidents and gridlock while improving fuel

efficiency” will happen all while one is otherwise occupied or just

napping.

In addition to autonomous cars shortening commute times,

saving money, increasing productivity and reducing traffic challenges,

30. HAVEIT, THE FUTURE OF DRIVING 1 (Sept. 23, 2011), available at http://haveit-

eu.org/LH2Uploads/ItemsContent/24/HAVEit_212154_D61.1_Final_Report_Published.pdf

[hereinafter HAVEIT].

31. NHTSA, DISTRACTION.GOV, http://www.distraction.gov (last visited Sept. 13, 2014).

32. HAVEit, supra note 30, at 1 (citing U.S. DEP’T OF TRANSP. NAT’L HIGHWAY TRAFFIC

SAFETY ADMIN., THE 100-CAR NATURALISTIC DRIVING STUDY, at xxiii-xxiv (2006), available at

http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Dis

traction/100CarMain.pdf.

33. HLDI News, Crash avoidance features reduce crashes, insurance claims study shows,

INSURANCE INSTITUTE FOR HIGHWAY SAFETY HIGHWAY LOSS DATA INST. (July 3, 2012),

http://www.iihs.org/iihs/news/desktopnews/crash-avoidance-features-reduce-crashes-insurance-

claims-study-shows-autonomous-braking-and-adaptive-headlights-yield-biggest-benefits.

34. AUTONOMOUS VEHICLE TECHNOLOGY, supra note 2.

35. Id.

36. Daniel P. Howley, The Race to Build Self-Driving Cars, Laptop (Aug. 23, 2012, 2:11

PM), http://blog.laptopmag.com/high-tech-cars-go-mainstream-self-driving-in-car-radar-more.

37. Self-Driving Cars: Are We Ready? KPMG, at 14 (2013), https://www.kpmg.com/US/en/

IssuesAndInsights/ArticlesPublications/Documents/self-driving-cars-are-we-ready.pdf.

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they will simply be safer overall and even help the blind and others who are

visually impaired.

California State Senator Alex Padilla, key author of California’s

autonomous vehicle legislation, agrees the self-driving cars offer these

listed benefits.

California legislation confirms the expected benefits as

well.

On the East Coast, even Columbia University’s Earth Institute lauds

driverless vehicles for “enabling passengers to use their time as they please

(e.g., texting, talking on the phone, eating, or watching a movie) without

endangering themselves or others.”

E. So, Why the Problem?

Email and texting replaced the phone call to such an extent that

younger generations are socially changed from their predecessors and while

they develop new computer or technology skills, they fail to develop classic

communication skills.

The automobile was a welcome innovation to

replace the horse and buggy.

Now, the autonomous (self-driving) car is

due to replace the human-driver experience much more cohesively than the

38. See Keith Barry, High-Tech Car Allows the Blind to Drive, WIRED (Feb. 15, 2011, 9:00

AM), http://www.wired.com/autopia/2011/02/high-tech-car-allows-the-blind-to-drive/; see also

U.S. DEP’T OF TRANSP. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., NATIONAL MOTOR VEHICLE

CRASH SURVEY: REPORT TO CONGRESS 23-26 (2008), available at http://www-

nrd.nhtsa.dot.gov/Pubs/811059.pdf (human error accounts for most car accident deaths and drivers

are the primary cause of most accidents whereas vehicle defects are the primary cause of a

relatively very few); see also Dan Neil, Who’s Behind the Wheel? Nobody, WALL ST. J. (Sept. 24,

2012), http://online.wsj.com/news/articles/SB10000872396390443524904577651552635911824.

Automobile accidents at the hands of human drivers are estimated to cost approximately 300

billion dollars (taking into account deaths, health care, property loss, and the effects of traffic

congestion). Id.

39. Senator Padilla stated that “[a]utonomous vehicle technology has the potential to

significantly reduce traffic fatalities and injuries. It also has the potential to increase fuel

efficiency, reduce traffic congestion and increase highway capacity.” Howley, supra note 36.

40. S.B. 1298 in Section 1 states: “The Legislature finds and declares . . . [that] ‘autonomous

vehicles’ offer significant potential safety, mobility, and commercial benefits for individuals and

businesses in the state and elsewhere.”

S.B. 1298, 112th Cong. (Cal. 2012) [hereinafter S.B. 1298].

41. LAWRENCE D. BURNS ET AL., THE EARTH INST. COLUMBIA UNIVERSITY,

TRANSFORMING PERSONAL MOBILITY 3 (2013), available at http://sustainablemobility.ei.

columbia.edu/files/2012/12/Transforming-Personal-Mobility-Jan-27-20132.pdf.

42. See Sherry Turkle, Op-Ed., The Flight from Conversation, N.Y. TIMES (New York

edition), Apr. 22, 2012, at SR1, available at http://www.nytimes.com/2012/04/22/opinion/sunday/

the-flight-from-conversation.html.

43. See The American Automobile, N.Y. TIMES, Sept. 23, 1904, at 8.

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already-used technology in some luxury vehicles that helps avoid collisions

and helps cars park scratch-free.

It seems likely that the technology will be limited by its inhumanity if

we assume there is value in the human skills that cannot be learned or

replicated in robots or computers?

In the meantime, will human capacity

for driving atrophy with the lack of use? It is impossible to definitely

answer these questions now. Hence, it is imperative we preemptively

address potential legal liability complications that will ensue in the Interim

Period, the period between the introduction of these cars into the

marketplace and reliable safety data based on diverse, real, daily use.

F. Testing and Market Predictions:

Google has already tested its Google Chauffer over 500,000 miles

without a crash.

Ann Arbor’s Michigan Mobility Transformation Center

(“a cross-campus University of Michigan initiative that also involves

government and industry representatives”) is to become the first U.S. city

with a fleet of driverless vehicles.

Researchers are planning the country’s

largest experiment of networked vehicles that will involve 3,000 residents.

A joint industry/government project will simulate a cityscape in order to

test driverless vehicles in an urban setting.

Presently, there are at least

44. See Howley, supra note 36. “Backup cameras have become so effective at helping to

prevent backing into things (and people) that the U.S. Department of Transportation has proposed

a federal mandate that would require all cars be equipped with a rear-facing camera by 2014.”

Ford and Mercedes have already begun placing rear-view mirror cameras meant to make sure the

car stays in its lane. The steering wheel of the Mercedes will vibrate automatically if one starts

moving out of their lane. Id. Some cars are equipped with front and rear-facing cameras and

loaded with radar and ultrasonic sensors. Id. The Cadillac XTS’s radar detects oncoming cars

preventing one from having to guess if a car is backing out of a parking space. And Ford’s Blind

Spot Information System (BLIS) detects and alerts as to vehicles in a car’s blind spot by lighting

up an icon in the side view mirrors. Id. Ford and Toyota also implement parallel parking assist

features that rely on “hypersonic sensors that calculate the size of an available [parking] space.”

Id. Additionally, current technology includes so-called “Intelligent Cruise Control” (Infinity’s

system) that allows the car to slow down the cruise control when determining the slower speed of

another car that suddenly drives in front. Both Mercedes and Infinity can automatically apply

brakes when the cars detect that an imminent crash. Id.

45. See Bryant Walker Smith, Human Factors in Robotic Torts 9, WE ROBOT CONFERENCE

(Mar. 30, 2013) (unpublished paper), http://conferences.law.stanford.edu/werobot/wp-

content/uploads/sites/29/2013/04/HumanFactorsRoboticTorts_BryantWalkerSmith.pdf; see also

GLADWELL, supra note 25.

46. See AUTONOMOUS VEHICLE TECHNOLOGY, supra note 2.

47. Nicole Casal Moore, Driverless, Networked Cars on Ann Arbor Road By 2021,

PHYS.ORG (Nov. 11, 2013), http://phys.org/news/2013-11-driverless-networked-cars-ann-

arbor.html.

48. Id.

49. Id.

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nineteen car manufacturers working on this technology and several software

companies including Google Inc., Microsoft, Mobilete, QNX Software

Systems Ltd.

There are also business consulting services focused on

researching the marketing and selling that data to interested companies.

Thus, it seems quite certain that these cars will soon be on the roads for

regular consumer use.

And yet, although, as noted, the cars will feature

technology already in use in luxury vehicles and likely be priced as such,

the complete reliance on computer algorithms and other technologies to

drive will undoubtedly trigger a lack of trust that the autonomous cars will

operate as intended in all situations.

At the 2014 Detroit motor show,

Ulrich Eichhorn, Managing Director of the German car makers’ industry

association, the VDA, observes “the pressure for autonomous cars and their

role in preventing accidents will be almost overwhelming. ‘They’ll initially

50. See Autonomous Vehicles, NAVIGANT RESEARCH, http://www.navigantresearch.com/

research/autonomous-vehicles (last visited Oct. 22, 2014). The following car companies are

involved in developing autonomous cars: Audi AG, BMW AG, Chrysler, Daimler AG, FIA S.p.A,

Ford Motor Company, General Motors, Honda Motor Company, Mazda, Mitsubishi Motors Corp.,

Nissan Motor Company, PSA Peugeot Citroën, Renault S.A., Tesla Motors, Toyota Motor Corp.,

Volkswagen, Volvo Car Corp. In addition to the mentioned software companies, Navigant cite

seventeen companies as “key industry players” and a few others involved such as: 2getthere,

Connected Vehicle Trade Association, and Ultra Global. Id.

51. See id. (commenting that liability issues must be resolved before commercialization can

occur and encourage lawmakers and insurance companies to address the issues immediately).

52. See Driverless Cars, PHYS.ORG (Nov. 21, 2013), http://phys.org/news/2013-11-

driverless-cars.html. In 2013, self-driving cars were becoming reality. In Japan, “Mazda is

testing how different types of cars and trams cab communicate with each other.” Id. Google

launched a driverless car project. BWM presented the Traffic Jam Assistant, a “technology that

ensures that a vehicle keeps a certain distance from the car in front of it” that is meant to work at

speeds of up to 40 km/hour (approximately 25 mph). Id. The vehicle will increase the speed and

break as needed. “Ford presented a system that uses radars, ultrasonic sensors, and a camera that

monitors a 200 [meter] strip of road. The driver is given a warning if they are in danger of driving

into anything, and if they fail to respond then the car will avoid the obstacle itself by breaking or

steering.” Id. Cars are being programmed to communicate with each other through Wi-Fi

network systems, cameras, and radar and are being tested by universities and car manufacturers

worldwide. Id. A company called TU Delft is working on a system that will improve GPS signals

using predictions of atmospheric conditions and satellite orbits. Id. Notably, TU Delft does not

recommend drivers be passive and un-alert. Rather the cars are designed to monitor driver

alertness with infrared camera eye tracking, rendering the driver a supervisor of the vehicle, akin

to an aircraft pilot. Id.

53. Pricing would likely be in keeping with that for semi-autonomous (some automated

features) vehicles already on the market. Navigant Research expects early versions to include an

extra $10,000, and after the technology has evolved, cost less than $2,000. See Dave Alexander,

Autonomous Vehicles: Your Questions Answered, NAVIGANT RESEARCH BLOG (Dec. 2, 2013),

http://www.navigantresearch.com/blog/autonomous-vehicles-your-questions-answered; see also

DEP’T OF DEFENSE, DEFENSE SCIENCE BOARD, TASK FORCE REPORT: THE ROLE OF AUTONOMY

IN DOD SYSTEMS 2 (2012), available at http://www.acq.osd.mil/dsb/reports/

AutonomyReport.pdf.

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reduce accidents by maybe 90 per cent.’”

However, he also contemplates

the dilemma in the possibility of the car’s decisions not always being good

ones.

There may be accidents the autonomous car helps avoid, but also

ones the human could have helped avoid or where the “technology should

have avoided but failed to.”

Predictably, Mr. Eichhorn expects courts to

“side with humans. . . rather than manufacturer’s algorithms.”

PART II: PRESENT STATE LEGISLATION

In the United States, individual states do not usually address

autonomous cars in the states’ respective vehicle codes.

As of 2013, three

U.S. states: California, Nevada, and Florida, have passed laws permitting

the use of autonomous cars.

Other states have considered such laws but

have not passed them, preferring to wait until liability regulations and

issues are resolved.

This may change over time.

54. Andrew English, Autonomous Cars – Is This the End of Driving?, TELEGRAPH (Jan. 16,

2014), http://www.telegraph.co.uk/motoring/road-safety/10570935/Autonomous-cars-is-this-the-

end-of-driving.html.

55. Id.

56. Id.

57. Id.

58. See Bryant Walker Smith, Automated Vehicles Are Probably Legal in the United States,

1 TEX. A&M L. REV. 411, 463 (2014).

59. See Joann Muller, With Driverless Cars, Once Again It Is California Leading the Way,

FORBES (Sept. 26, 2012), http://www.forbes.com/sites/joannmuller/2012/09/26/with-driverless-

cars-once-again-it-is-california-leading-the-way/; see also S.B. 1298, 112th Congress (Cal. 2012);

Nevada Enacts Law Authorizing Autonomous (Driverless) Vehicles, GREEN CAR CONGRESS (June

25, 2011), http://www.greencarcongress.com/2011/06/ab511-20110625.html; NEV. ADMIN. CODE

§ 482A.020 (Supp. 2014); Alex Knapp, Nevada Passes Law Authorizing Driverless Cars, FORBES

(June 22, 2011), http://www.forbes.com/sites/alexknapp/2011/06/22/nevada-passes-law-

authorizing-driverless-cars/. On 1 July 2012, “Florida became the second state to recognize the

legality of autonomous vehicles. Florida’s law clarifies that ‘the State does not prohibit or

specifically regulate the testing or operation of autonomous . . . vehicles on public roads.’”

Autonomous Cars, WIKIPEDIA, http://en.wikipedia.org/wiki/Autonomous_car (last modified Oct.

22, 2014).

60. See Dan Strumpf, Liability Issues Create Potholes on the Road to Driverless Cars,

WALL ST. J. (Jan. 27, 2013), http://online.wsj.com/news/articles/SB10001424127887323854

904578264162749109462.

61. Stanford created a wiki that charts the various US State laws regarding autonomous cars

about autonomous cars. See Gabriel Weiner & Bryant Walker Smith, Automated Driving:

Legislative and Regulatory Action, THE CENTER FOR INTERNET AND SOC’Y, http://

cyberlaw.stanford.edu/wiki/index.php/Automated_Driving:_Legislative_and_Regulatory_Action

(last modified July 7, 2014).

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Interestingly, a venerable nonprofit, nonpartisan, public interest

research institution, the Rand Corporation,

warns against premature new

regulation for autonomous cars generally. Rand is concerned with the lack

of information about the viability and exact functionality of the cars.

Specifically, Rand is concerned with states’ legislation creating “a crazy

quilt of different, and perhaps incompatible requirements that could

increase costs and make the technology uneconomical.”

Thus, it

encourages collaboration between legislatures, insurance companies,

manufacturers, and consumer groups.

The recommendation seems sound

and logical to this writer; and arguably any collective analysis should

include potential accident victims, especially non-drivers. Additionally,

although vehicles’ regulations are squarely within the states’ police

powers,

there is federal legislation regarding vehicles

and given the

overall societal alleged benefits of these cars, there ought to be, at the very

least, federal regulation concerning liability for use on interstate highways

and other federal lands.

Why Regular Insurance Does Not Solve the Problem

When hit by a car, either as a pedestrian, or while in another vehicle,

one’s first attempt at remedy will be through insurance.

However, not

everyone has auto insurance and not all auto insurance coverage is the

same.

In any case, people will have varying levels of insurance but the

62. For information about the RAND Corporation, see About the RAND Corporation,

RAND CORP., http://www.rand.org/about.html (last visited Aug. 19, 2014).

63. AUTONOMOUS VEHICLE TECHNOLOGY, supra note 2 (noting that more information

about benefits and costs is required before regulations, subsidies, or new taxes are initiated).

64. Id.

65. See id.

66. See Am. Trucking Ass’n v. Mich. Pub. Serv. Comm’n, 545 U.S. 429, 432-33 (2005).

67. See National Traffic and Motor Vehicle Safety Act of 1966, 49 U.S.C. § 30103 (2012)

(regulations impose minimum standards regarding airbag safety and these standards would

preempt any state law with lower standards); see also 15 U.S.C. § 2089 (2012) (federal legislation

regulating use of all terrain vehicles).

68. Most states require drivers to carry auto insurance. Car Insurance, ENHANCED INS.,

http://www.enhanceinsurance.com/car-insurance/ (last visited Aug. 24, 2014); How Much Car

Insurance Do You Need?, WALL ST. J. (Dec. 17, 2008, 3:24 PM), http://guides.wsj.com/personal-

finance/insurance/how-much-car-insurance-do-you-need/.

69. WALL ST. J., supra note 68. In 2012, for example, 16.1% of drivers were uninsured.

ENHANCED INS., supra note 68. Insurance consumer information sites such reflect what is

generally common knowledge, that there are many insurance companies and levels of coverage

and many prefer to save money and get lower levels of coverage such as Liability Only Coverage.

See id. “Liability Only” insurance protects “at fault” drivers against a lawsuit (subject to policy

limits) and pays for the damages (up to the set limits) to another person’s vehicle or property. See

WALL ST. J., supra note 68.

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average person’s insurance will cover only a fraction of one’s costs if there

are serious personal injury damages.

The same is true in regard to the

driver’s insurance.

Pedestrians will likely have health insurance but that

would not necessarily cover all their injuries any more than regular auto

insurance would for drivers.

Assuming it is established that the injured party is not at fault (as

established from insurance investigation to start with) and that the injuring

party’s insurance is just average as well, the injured victim is left with the

costly remedy of a lawsuit. In the traditional car accident scenario, the

lawsuit would be against the driver if the driver could be alleged to be

negligent, for example, driving drunk, violating traffic signs, failing to be

sufficiently attentive, or speeding.

Alternatively, if the accident could be alleged to result from a

malfunctioning of the vehicle, such as brake failure, the injured party could

assert a claim directly on the manufacturer.

With the introduction of

autonomous vehicles (vehicles that drive operated by computer

programming without a human driver in control), the determination of

negligence liability and products liability causation will be muddled,

making it harder for potential plaintiffs to assert their case and more

complicated for courts to determine viable causes of action and appropriate

jury instructions. Surely plaintiffs firms will happily pursue both the

human driver and the autonomous car manufacturer, further driving up

discovery and litigation costs for all involved. However, this will not make

the causation analysis any easier, just more complicated and expensive.

70. WALL ST. J., supra note 68. Additionally, liability coverage help cover liability and

expenses when the driver is at fault to cover the other vehicle’s injured but it will not cover the

driver’s passengers. Id. Bodily Injury Liability policies cover medical expenses for injured

parties when the policy holder is at fault. However, these policies have coverage limits such as

$20,000 per person but up to $50,000 total per accident, covering everyone in the car one hit. See

id.

71. See id.

72. “Although most Americans hold major forms of insurance coverage, a significant

minority lack coverage, and the level of coverage of those who have insurance may be

substantially less than their losses.” A. Mitchell Polinsky & Steven Shavell, The Uneasy Case for

Product Liability, 123 HARV. L. REV. 1437, 1463 (2010).

73. See Rio Seco v. Alfred Meyers Trucking, Inc., 208 So. 2d 265, 266 (Fla Dist. Ct. App.

1968) (stop sign); see also Rawls v. Progressive N. Ins. Co., 83 A.3d 576, 586, 590 (Conn. 2014)

(inattentive driving); see Conniff v. McCaleb, 2005 WI App 21U, 278 Wis. 2d 812, 691 N.W.2d

926 (speeding and drunk driving) (unpublished disposition).

74. Under the “malfunction doctrine,” a product defect may be established by proving that

the product failed in normal use, suggesting a product defect. Fallon v. Matworks, 918 A.2d

1067, 1075 (Conn. Super. Ct. 2007). Circumstantial evidence can be used to show that “(1) the

product malfunctioned, (2) the malfunction occurred during proper use, and (3) the product had

not been altered or misused in a manner that probably caused the malfunction.” Id.

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As far as the real impact of autonomous cars on safety, no one can

predict the actual reaction and psychology of other drivers on the road when

the autonomous cars are part of everyday driving experience.

The other

cars on the road are easy to detect with sensors but pedestrians and cyclists

are less so and it is predicted that to build confidence it is likely that

initially these cars will be used only on roadways (i.e.

highways/freeways).

But how practical is that when one has to get to the

roadway in the first place? Impressively, Japan’s tram technology has

proven itself in Hiroshima, for example, where a tram avoided hitting an

oblivious pedestrian and where cars and trams communicate via 700 MHz

radio waves.

In current state legislation permitting, for now, just the testing of

autonomous vehicles, the definitions are fairly consistent with those used by

the NHTSA, but laws require appropriate licenses and supervision by a

human driver sitting in the driver’s seat.

State legislation ought to be

uniform so people crossing state lines do not have to worry about different

standards regarding autonomous vehicles.

PART III

A. Present Laws and Legal Theories Available to Non-User Injured

Plaintiff:

1. Alleging General Negligence

A plaintiff who was injured in an accident caused by an autonomous

car would likely retain an attorney and sue both the driver of the vehicle and

the manufacturer of the car (assuming she was not able to find full

75. PHYS.ORG, supra note 52.

76. Id. Although sensor systems used in semi and fully autonomous cars can take in more

information than human eyes, the ability to interpret the information is still a research challenge.

See AUTONOMOUS VEHICLE TECHNOLOGY, supra note 2.

77. PHYS.ORG, supra note 52.

78. See, e.g., S.B. 1298, 112th Congress. (Cal. 2012).

79. For examples the word “operator” is not defined the same way in all three states. In

Nevada and Florida, the “operator” is the person who “causes the autonomous vehicle to engage,

regardless of whether the person is physically present in the vehicle while it is engaged.” NEV.

ADMIN. CODE § 482A.020 (Supp. 2014); FLA. STAT. ANN. § 316.85(2) (West 2014). California

uniquely defines the “operator” as the person in the driver’s seat. CAL. VEH. CODE § 38750(a)(4)

(West 2014). Although these differences are subtle, uniformity would best serve the public in

regard to notice of liability and ability to effectively navigate legal issues.

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satisfaction through insurance claims).

The plaintiff would have the

burden of proof by a preponderance to make out the prima facie case for

negligence: Duty, Breach, Causation, Proximate Cause, and Damages.

a negligence action at common law, the duty of care standard is based on

foreseeability and the breach of that duty of care is evaluated based on the

objective reasonable person standard.

Assuming that there are no

intervening causes affecting the proximate cause analysis

and there is no

lack of clarity regarding causation or ensuing damages, the challenging

legal analysis will be in assessing who breached a duty and who is at fault

for negligence.

2. Complications in the General Negligence Theory’s Duty & Breach

Analysis

The elements for a tort law cause of action for negligence are defined

in relation to one actor’s liability for “invasion” of another’s “interest.”

The elements for a cause of action of negligence are: invading a protected

interest, via negligent conduct, that is the legal cause of the invasion, and

that the actor has not conducted herself in such a way as to “disable

[herself] from bringing an action for such invasion.”

Negligence is

“conduct which falls below the standard established by law for the

protection of others against unreasonable risk of harm.”

But what is meant by “unreasonable risk of harm”? The Restatement

Comments and Illustrations note that one cannot be negligent if one’s

conduct does not create a recognizable risk of harm as to the class of

persons injured that would be reasonably foreseeable.

For example,

driving carelessly and therefore crashing into another car with dynamite in

80. It is commonly understood that plaintiff’s attorneys will pursue as many defendants as

they can for leverage and of course well-healed corporate defendants are a natural target.

PRACTICING LAW INST., PRODUCT LIABILITY LITIGATION: CURRENT LAW, STRATEGIES AND

BEST PRACTICES (Stephanie A. Scharf et al., 2013).

81. Geshke v. Crocs, 740 F.3d 74, 77 (1st Cir. 2014).

82. See Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 548-49 (1994) (the Supreme Court

specifically addressing negligent infliction of emotional distress but the negligence principles are

applied as usual); Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928) (landmark case

establishing foreseeability as fundamental in the duty and breach analysis); Parks v. AlliedSignal,

Inc., 113 F.3d 1327, 1331-32 (3d Cir. 1997) (citing the Restatement (Second) of Torts § 431 in

discussing the prima facie requirement of foreseeability and the reasonable care standard in strict

liability).

83. See, e.g., Dillard v. N.Y. City Hous. Auth., 977 N.Y.S.2d 226, 227 (App. Div. 2013).

84. RESTATEMENT (SECOND) OF TORTS § 281 (1965).

85. Id.

86. Id. § 282.

87. Id. § 281 cmt. on clause (b).

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192 SOUTHWESTERN LAW REVIEW [Vol. 44

it. The careless driving is negligent as to the other party hit in the crash.

However, the driver is not negligent as to collateral damage done by the

exploding dynamite because that was not foreseeable.

The analysis would

change if the car exploded on its own and not due to dynamite put inside

it.

Applying this legal concept and rule to autonomous cars emphasizes

the ensuing legal issues. Ought driving an autonomous car in the Interim

Period be deemed legally equivalent to driving a car with dynamite, or a car

even safer than a typical non-autonomous vehicle?

Thus, does driving an autonomous car without being fully attentive

equate with creating a recognizable risk of harm? And if so, who is

responsible for creating that risk, the manufacturer or the human user? In

general, litigators and judges would parse tort law to answer the questions if

the facts of the case did not identify a particular risk of harm created by

either the human driver’s clear misuse of the car, or some additional

specific discretely negligent act by the human user that created the risk, or a

clear malfunction of a specific function or feature of the car. In situations

where the human driver did something overtly negligent such as controlling

the car’s speeding, or if the driver overtly misused the car against

instructions or warnings, or, for example, the car’s brakes simply fail, then

the analysis is more clear.

However, if the human driver does nothing

clearly negligent and no particular part fails to operate properly, the

assessment of creating a foreseeable risk of harm is more complex.

88. Id. § 281 cmt. on clause (b), illus. 2.

89. See id.

90. If the driver negligently drove the car by speeding, for example, she would be liable for

negligence. See Conniff v. McCaleb, 2005 WI App 21U, 27 Wis. 2d 812, 691 N.W.2d 926. If the

driver’s use of the car exceeded the scope of foreseeable misuse then the manufacturer would not

be liable under products liability. Under the Third Restatement, most courts agree that

manufacturers of ordinary products cannot ward their liability away with warnings. See David G.

Owen, The Puzzle of Comment j, 55 HASTINGS L.J 1377, 1377 n.1, 1394-95 (2004). Interestingly,

“[w]hile there now is a Restatement (Third) of Torts on the topic of products liability, the law in

most states still is largely constructed upon Restatement (Second) of Torts section 402A, the most

influential section of any Restatement of the Law on any topic.” Id. In any case, manufacturers

are responsible for using a “safer design [when it] can reasonably be implemented and risks can

reasonably be designed out of a product . . . . Warnings are not . . . a substitute for the provision

of a reasonably safe design.” RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2 cmt. l (1998).

Additionally, warnings need to address and protect consumers against foreseeable misuse. See

Rivera v. Phillip Morris, Inc., 209 P.3d 271 (Nev. 2009). If part of the car simply malfunctions or

its overall design is defective, again, that is a more clear-cut products liability issue more readily

resolvable under common tort product liability theories. RESTATEMENT (THIRD) OF TORTS

PRODUCT LIABILITY § 2 (providing that products may be defective for either “defective in

design,” “manufacturing defect,” and/or because of “inadequate instructions or warnings.” Id.

The foreseeability of harm is always at the center of the analysis. See id. See Andrew P. Garza,

“Look Ma, No Hands!”: Wrinkles and Wrecks in the Age of Autonomous Vehicles, 46 NEW ENG.

L. REV. 581 (2012), for a more in-depth strict liability analysis of autonomous cars.

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Generally, answers to these issues can be resolved based on already existing

tort law rules and concepts.

To determine whether an actor should know that her conduct involves a

risk the Restatement requires knowledge of (a) “the qualities and habits of

human beings. . . and the qualities, characteristics, and capacities of things

and forces in so far as they are matters of common knowledge at the time

and in the community; and (b) the common law, legislative enactments, and

general customs in so far as they are likely to affect the conduct of the other

or third persons.”

Many states follow the Restatement rule.

autonomous cars are legally introduced on the market there will be

legislative enactments governing their use; either they will be governed by

regular automobile legislation and/or specifically tailored legislation. There

is already law in several states governing autonomous vehicle test-driving.

Additionally, the understanding and knowledge in regard to “qualities,

characteristics, and capacities of things” as discussed in the Restatement

will be predicated on published statistics, marketing information, warning

contents, and general knowledge. Judges and juries will invariably apply

varying subjective attitudes regarding new technology and the potential

safety and sagacity of these vehicles and their drivers.

A tension arises between one of the key purposes of autonomous

vehicles to allow a driver to be otherwise engaged and productive during

the driving time and the inherent risks that may flow from being a lawfully,

foreseeably inattentive driver. While at present, the state laws permitting

testing require the human driver to be at the ready to take over the driving,

proponents of autonomous technology warn against such requirements.

91. RESTATEMENT (SECOND) OF TORTS § 290 (1965).

92. E.g., Victor v. Hedges, 91 Cal. Rptr. 2d 466 (Ct. App. 1999) (Plaintiff who was injured

while standing with a man on sidewalk behind his parked car there lost at summary judgment

because of failing to raise fact issues as to whether it was reasonably foreseeable that the

defendant was placing the plaintiff at unreasonable risk of harm by standing with her on the

sidewalk when an inattentive driver drove over the sidewalk and hit plaintiff); see also Joyce v. M

& M Gas Co., 672 P.2d 1172, 1174 (Okla. 1983) (Oklahoma Supreme Court held it was not a

foreseeable risk of harm on part of car owner whose car was stolen, subsequently injuring

plaintiffs, after owner/defendant left his car keys in ignition).

93. See Knapp, supra note 59 (citing present laws regarding autonomous car use in

California, Florida, and Nevada).

94. RESTATEMENT (SECOND) OF TORTS §290 (1965).

95. See Technophobia, WIKIPEDIA, http://en.wikipedia.org/wiki/Technophobia (last

modified Aug. 9, 2014) [hereinafter Technophobia].

96. S.B. 1298, 112th Cong. (Cal. 2012); Autonomous Vehicles in California, CAL. DEP’T OF

MOTOR VEHICLES, http://dmv.ca.gov/portal/dmv/detail/vr/autonomous/ (last visited Mar. 21,

2014); NEV. REV. STAT. § 482A.070 (2013), H.B. 1207, 2012 Leg., 114th Reg. Sess. (Fla. 2012).

97. The claim is that human brains are not designed to supervise and no legal rule will

change this so if the car is driving itself, after a while, humans will stop paying attention, no

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Thus, one key purpose would be negated and the primary purpose would

arguably hindered. How safe autonomous cars will actually be when many

of them are on the roads remains to be seen. In the Interim Period, should a

human “driver” be held liable for negligence if relying on both the

lawfulness of these vehicles and marketing and warning information that

does not require attentiveness generally?

This Comment argues “no,” the driver should not under those

circumstances, and short of intervening negligence that interferes with the

operation of the vehicle, be held liable. Even if the marketing information

recommends or even requires attentiveness, it is likely that the “general

custom” (as per the Restatement)

will be to be inattentive, even if

inadvertently, because the circumstances and marketing will invite that.

After all, despite laws and public service announcements (PSAs) that

passionately and forcefully warn of the dangers of texting while driving,

there are, sadly, no shortage of devastating car accidents that result from

that very act.

Consequently, the case for foreseeable misuse is easily

made, rendering the manufacturer potentially liable even under a strict

liability theory. This Comment suggests that instead of requiring individual

plaintiffs to prove this independently, and risking both inconsistent

outcomes and punishing litigation costs, the legislature can solve the

problem before it starts.

It seems foreseeable that one’s skills in driving will atrophy from

disuse if autonomous cars become part of regular driving. Furthermore, if

the human driver is only meant to take over during times of mechanical

failure or emergency, is it likely that the driver will be as competent, given

reduced experience in driving and the stress of the situation involved in

matter what. Also, “supervision of a car traveling at high speed or in urban settings is very

different from supervising a plane on auto-pilot.” ALEXANDER HARS, SUPERVISING

AUTONOMOUS CARS ON AUTOPILOT: A HAZARDOUS IDEA, INVENTIVIO INNOVATION BRIEFS

(Sept. 2013), available at http://www.inventivio.com/innovationbriefs/2013-09/Supervised-

Autonomous-Driving-Harmful.2013-09.pdf. There are difficulties associated with the driver

knowing the car’s capabilities (what it can and cannot handle) and whether drivers can react in

time. Id. One leading consultant involved in autonomous car software and technology

strenuously discourages regulation that requires supervised driving because he believes it will

curtail innovation and the supervision will be ineffective or challenged as noted above. See id.

98. See RESTATEMENT (SECOND) OF TORTS § 290 (1965).

99. Texting while driving is a growing national problem that results in approximately

1,600,000 accidents per year according to the National Safety Council and 330,000 injuries per

year according to a Harvard Center for Risk Analysis study. Texting and Driving Statistics,

TEXTING AND DRIVING SAFETY, http://www.textinganddrivingsafety.com/texting-and-driving-

stats/ (last visited Mar. 21, 2014); see Todd Leopold, Film Legend Herzog Takes on Texting and

Driving, CNN (updated Aug. 16, 2013, 1:20 PM), http://www.cnn.com/2013/08/16/tech/mobile/

werner-herzog-texting-driving/ (Werner Herzog’s (famous Academy-Award™-winning director)

lauded Public Service Announcement about the dangers of texting and driving).

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taking over control? No. Not likely. The auto-pilot airplane example is

instructive. Auto-pilot technology controls airplanes and yet most accidents

are attributed to pilot error for inability to properly follow the directions

when in an emergency situation.

100

Does that understanding make the

human driver more liable for being in that situation, or less so? There is no

benefit leaving the analysis to varying independent judgments and a

complicated evaluation of exactly what and whose decision was the

proximate cause

101

of the accident. The litigation solution would be to have

a complicated lawsuit involving a battle of expert evidence and opinion

regarding technology and causation. The lawyers win but the parties lose in

time and cost; hence, the need for more consumer and public-protective

solutions.

102

As discussed further below, these solutions would just as much protect

the emerging market for autonomous vehicles because liability concerns

would be assuaged and liability costs could be built into the automobiles’

costs. However, this Comment’s proposed solutions are not arbitrary.

They are grounded in established tort law concerning the risk of harm

balanced against utility and the requisite reasonable care standard.

The Restatement Second of Torts’ list of factors relevant to

determining the standard of reasonable conduct including: a weighing of the

risk of harm compared to “what the law regards as the utility of the act,”

103

the “utility of the actor’s conduct” and “magnitude of risk” for purposes of

determining negligence, is evaluated based on social value attached to it.

104

Society clearly seems to be attaching great social value to the autonomous

100. Although there are cases in which the auto-pilot mode was in part responsible for the

airplane accident, in most cases a flaw in human oversight was the bigger cause of the accident.

K. Krasnow Waterman & Matthew T. Henshon, Imagine the Ram-If-Ications: Assessing Liability

for Robotics-Based Car Accidents, 5 NO. 4 ABA SCITECH L. 14, 14-15 (2009); see also Pilot

Error, WIKIPEDIA, http://en.wikipedia.org/wiki/Pilot_error (last visited Mar. 21, 2014) (explaining

the now famous and instructive Eastern Air Lines Flight 401 crash near Miami that the National

Transportation Safety Board blamed on the crew for failing to monitor the plane’s instruments

correctly); Causes of Fatal Accidents by Decade (percentage), PLANECRASHINFO.COM,

http://www.planecrashinfo.com/cause.htm (last visited Mar. 21, 2014) (for general data regarding

human error causing plane crashes).

101. Liability arises when the “actor’s conduct is a legal cause of the invasion.”

RESTATEMENT (SECOND) OF TORTS § 281(c) (1965). In a situation where the human

operator/”driver” does something manually out of fear that car will not react in time, or, if she

corrects what car does because it seems wrong—if an accident results from either of these, both

the car and the human did something that resulted in a harm. How can one later resolve what was

wrong and what was right? Who can tell!

102. See infra Part IV.

103. RESTATEMENT (SECOND) OF TORTS § 291 (1965).

104. Id. § 292; § 293.

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196 SOUTHWESTERN LAW REVIEW [Vol. 44

car.

105

Therefore, if such autonomous car use is sanctioned and the vehicle

is marketed to be safe, arguably the driver should not be deemed negligent

for following the law and the recommended use of a product. Moreover, if

the state, such as Florida which permits texting while driving (if in

autonomous mode), permits being a distracted, inattentive driver,

106

the

human driver’s conduct is in keeping with “legislative enactments” and

therefore, the person should not be held negligent in a situation that

involved no unforeseeable misuse.

Another option though, theoretically, at least until the cars are

ubiquitously proven safe, is to impart liability on the human driver simply

for the activity being an “inherently dangerous” one that essentially creates

strict liability.

107

However, while, for example, a bar owner or even social

host serving alcohol may be liable to a third party plaintiff injured by a

drunk driver,

108

the act of driving while intoxicated has been held not to

qualify as an inherently dangerous activity for purposes of tort liability

because “the concept presupposes that the ultra-hazardous activity has some

social value and that reasonable care is insufficient to eliminate its risk of

harm.”

109

This train of thinking suggests the affirmative defense of

“Assumption of the Risk”

110

– but whose assumption? and whose risk? The

105. See supra Part I, “Potential Benefits of the Autonomous Car,” notes 34-41 and

accompanying text.

106. See explanation of Florida law regarding autonomous cars supra note 59 and

accompanying text.

107. RESTATEMENT (SECOND) TORTS § 519 (1977) (“One who carries on an abnormally

dangerous activity is subject to liability for harm to the person, land, or chattels of another from

the activity, although he has exercised the utmost care to prevent the harm . . . . This strict

liability is limited to the kind of harm, the possibility of which makes the activity abnormally

dangerous.”). When an activity is “inherently dangerous” injury flowing from the risk of the

activity creates strict liability. An activity is “inherently dangerous” when it carries a serious risk

of harm, even if performed with great care, and the activity is not common in the community. See

id.; see also § 520.

108. Social hosts or bars / restaurants may incur liability for over-serving alcohol to

foreseeable drivers. See Tom Stilwell, Warning: You May Possess Continuing Duties After the

Sale of Your Product! (An Evaluation of the Restatement (Third) of Torts: Products Liability’s

Treatment of Post-Sale Duties), 26 REV. LITIG. 1035 (2007); see also Edward L. Raymond Jr.,

Social Host’s Liability for Injuries Incurred by Third Parties As a Result of Intoxicated Guest’s

Negligence, 62 A.L.R.4th 16 (originally published in 1988); 45 AM. JUR. 2d Intoxicating Liquors

§§ 518-521 (liability is not incurred in all jurisdictions).

109. Goodwin v. Reilley, 221 Cal. Rptr. 374, 375 (Ct. App. 1985)).

110. The Affirmative Defense of Assumption of the Risk shields a manufacturer from liability

if the inherent risks were disclosed and the product user knowingly assumed the risks. See, e.g.,

Tone v. Song Mountain Ski Ctr. 977 N.Y.S.2d 857, 858 (N.Y. App. Div. 2014). However, many

states now merge the comparative negligence analysis with the concept of assuming risk and thus

the defense is no longer recognized in many states. Gary E. Marchant & Rachel A. Lindor, The

Coming Collision Between Autonomous Vehicles and the Liability System, 52 SANTA CLARA L.

REV. 1321, 1336-37 (2012). The Restatement (Third) of Torts rejects not-contractual assumption

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human driver’s? Or, the autonomous car manufacturers’? The questions

and issues raised by this Comment are answered, seemingly, consistent with

both tort law and products liability in general,

111

especially as pertaining to

vehicles—that the manufacturer would be liable for injuries resulting from

any foreseeable use of its product. Period. In this way, the inherent

complications of general negligence analysis of autonomous car accidents

are resolved by imparting the principles of strict liability in finding that any

proximately caused injury resulting from foreseeable use of an autonomous

car should be borne by the manufacturer, regardless of whether the act of

using the car would be regarded by some as “inherently dangerous” /

“ultrahazardous.” After all, the whole point of these cars is to be ultimately

ultra safe.

Additionally, a strong argument can be made that autonomous vehicle

technology is so attractive it lulls people into complacency. This reasoning

has resulted in lawyers arguing that manufacturers of the submarine

shoulder strap are liable for accidents because passengers are lulled into

complacency.

112

Perhaps one could argue that, as the human owner’s personal property,

the owner is responsible for the vehicle as much as she would be for her

pet.

113

Alternatively, for proponents of robot personhood, there is an

argument to be made that the autonomous vehicle is the human driver’s

agent.

114

However, presently, computers and robots, while fast-computing

and able to “mimic some aspects of human behavior and can only achieve

of risk. See id; see also RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIAB. § 2 cmt. f

(2000).

111. Products manufacturers are liable for harms to users of their products if the harm is

caused by the use. See RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 1 (1998). However,

Assumption of the Risk may be a viable affirmative defense in products strict liability actions.

See Lipson v. Superior Court, 644 P.2d 822, 830-831 (Cal. 1982).

112. “Passive restraint systems lull the occupant into a false feeling of safety when the

shoulder belt slides around them.” Thomas J. Methvin, How to Spot a Product Liability Claim,

BEASLEY ALLEN 3 (Feb. 8, 2008), https://www.beasleyallen.com/webfiles/How%20to%20Spot%

20a%20Product%20Liability%20Claim.pdf.

113. The law sees pets as people’s personal property. See Maureen L. Rowland, Legal

Standing of Animals Today, 40 MD. B.J. 10, 11 (2007). Pet owners are thus liable for the harm

their pets may cause others. E.g., Priebe v. Nelson, 140 P.3d 848, 853 (Cal. 2006) (citing

California law rendering dog owners strictly liable for their dogs biting).

114. The argument would be that the robotics of the autonomous car is an agent of the human

owner (“principal”), or it could be said to be an agent of the manufacturer. See generally

RESTATEMENT (THIRD) OF AGENCY §2.01 (2006); Gabriel Hallevy, I, Robot – I, Criminal” –

When Science Fiction Becomes Reality: Legal Liability of AI Robots Committing Criminal

Offenses, 22 SYRACUSE SCI & TECH. L. REP. 1, 9 (2010). “A principal who conducts an activity

through an agent is subject to liability for harm to a third person caused by the agent’s conduct if

the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or

otherwise controlling the agent.” RESTATEMENT (THIRD) OF AGENCY § 7.05.

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an ‘idiot savant level of expertise’ in narrow areas” and no machine has

passed what is called the “Turing Test” which evaluates robots’ capacity to

think and communicate and effectively pass as a human.

115

Given that these last suggested theories seem somewhat far-fetched,

and that the definition of, marketing of, and warnings related to autonomous

cars all will suggest that the human driver need not be attentive, then she

ought not be held liable for that choice. After all, the Restatement rule is

that: “Where an act is one which a reasonable man would recognize as

involving a risk of harm to another, the risk is unreasonable and the act is

negligent if the risk is of such magnitude as to outweigh what the law

regards as the utility of the act or of the particular manner in which it is

done.”

116

If the information about the car available to the user may

reasonably be understood to mean that the driver can choose to not pay

attention, it seems inequitable to then hold her liable for negligence for

anything that happens after that, barring any user misuse of intervening

cause of plaintiff’s injury. Thus, if the human driver is not negligent under

the circumstances of regular autonomous vehicle use, then the manufacturer

must be for creating the product and the consumer understanding and

reliance on safety. This would be consistent with precedent.

117

Interestingly, in the use of industrial robots, when robots’

manufacturers have been sued, most injuries have been attributed to human

failure to follow safety precautions.

118

However, with an autonomous

vehicle, if operated properly and there are no other intervening events

impairing the car’s functionality, and the car is intended to be fully

autonomous, ought the responsibility not fall on the software programming

and the manufacturing of the vehicle? After all, if the self-driving cars are

to be dramatically safer, and that benefit, among others, will drive its

success, then a manufacturer should be liable for what should be far fewer

accidents anyway. The liability costs that do result, especially in the

Interim Period while the technology is being refined, can be rationalized as

the cost of entry into and creating the market—essentially the cost of doing

business.

115. F. Patrick Hubbard, “Do Androids Dream?”: Personhood and Intelligent Artifacts, 83

TEMP. L. REV. 405, 447, 441 (2011).

116. RESTATEMENT (SECOND) OF TORTS § 291 (1965).

117. See, e.g., Soule v. General Motors Corp., 882 P.2d 298 (Cal. 1994); see, e.g.,

MacPherson v. Buick Motors Co., 111 N.E. 1050 (N.Y. 1916); Derflinger v. Ford Motor Co., 866

F.2d 107 (4th Cir. 1989).

118. See, e.g., Payne v. ABB Flexible Automation, Inc., No. 96-2248, 1997 U.S. App. LEXIS

20255 (8th Cir. June 9, 1997).

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B. Litigation Hurdles for Potential Plaintiffs

If there is no rule holding the human driver liable, a plaintiff can allege

general negligence on the part of the manufacturer and also assert a

products strict liability claim.

119

The human driver defendant could also

assert a products liability third party complaint against the manufacturer.

Plaintiffs, on the one hand, would benefit from going after the deeper

corporate pockets of a car manufacturer, unless the human driver were

wealthy or had very significant insurance coverage (in which case the

litigation would likely lead to settlement).

However, plaintiffs would then also face a wealthy corporate

defendant

120

who could easily drive up the costs of litigation, making

discovery burdensome and complicated since defendants would be in the

best position to decode the car’s computer and black box readings.

121

Accordingly, at the 2014 Detroit motor show Mercedes-Benz CEO

explained that he hopes there would not be too much regulatory pressure to

turn over the data readings to insurance companies, opposing parties, etc.,

and would prefer the data remain with the driver.

122

Importantly, as noted, the benefit of a potential requirement for human

driver attention is debated. Some proponents of autonomous vehicles think

it is critical human drivers stay attentive and at the ready, while others

strenuously disagree.

123

In general, products manufacturers have a duty of

care to users, foreseeable users and those foreseeably affected by their

products to make products safe for the purpose they were intended.

124

119. A plaintiff can assert a strict liability claim for design defect (which is determined under

either the Consumer Expectation Test or the Risk Utility Test), manufacturer defect, or a warning

defect / failure to warn (which is usually limited to foreseeability at the time of sale). See

Marchant & Lindor, supra note 110.

120. While plaintiffs’ lawyers may advise their clients to pursue wealthy corporate defendants

with big pockets, that also means those defendants can defend themselves with the help of big

corporate law firms. See Defective Product Liability Claims: Who to Sue?, NOLO,

https://www.nolo.com/legal-encyclopedia/defective-product-liability-claims-who-29606.html (last

visited Sept. 19, 2014).

121. Matos v. State, 899 So. 2d 403, 405 (Fla. Dist. Ct. App. 2005); see also infra note 159

and accompanying text (regarding black box data in cars and current state laws regarding

preserving the data in event of accident).

122. See English, supra note 54. The CEO offered “[b]ut it seems possible that insurance

companies might offer a bonus based on driver [behavior] if you allow them access to that data.

We will try to defend the decision to leave [the data] with the driver.”). Id.

123. Compare HAVEIT, supra note 30 (discussing human supervision in detail) with HARS,

supra note 97 (regarding the consultant who warns against it). See NAVIGANT RESEARCH PRESS

RELEASE, supra note 16 (suggesting that human drivers should be responsible for autonomous

cars the way that human pilots are for planes operating in auto-pilot.).

124. See R.D. Hursch, Liability of Manufacturer or Seller for Injury Caused by Automobile

or Other Vehicle, Aircraft, Boat, or Their Parts, Supplies, or Equipment, 78 A.L.R.2d 460

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Autonomous cars by their very nature require a conflation of products

liability analysis even when dealing with accidents that would be

considered the result of negligence had the car been regular. One must

recall that at the onset of the automobile’s entry into our society, Justice

Cardozo, in the landmark case MacPherson v. Buick, set the standard for

manufacturer liability any time foreseeable use of a product results in

danger or harm.

125

Thus, it is unacceptable for litigators to try to parse the

cause of the accident if it only comes down to whether the human driver

should have taken command of the car or not. The autonomous car, by its

essence, creates the condition whereby a human driver will not have caused

the accident and may not be able to prevent the accident, and for that, the

manufacturer must be held liable.

Plaintiffs firms will of course be comfortable suing manufacturers as

well as car owners on behalf of their clients. Yet lawsuits cost a lot of

money (figures vary based on complexity of the case); even if costs are not

out-of-pocket for plaintiffs, but recoupable after a win, plaintiffs often only

recover half of the sums paid by the defendant.

126

It is common knowledge

that plaintiffs sometimes recover even less, such as forty or thirty percent.

This seems a gratuitous price for injured plaintiffs to pay when the problem

is so clear and so easily remedied.

PART IV: PROPOSED SOLUTIONS

The benefit of strict liability theory for plaintiffs is that it reduces

litigation costs because the plaintiff only needs to prove a defect in the

product and causation of the harm, a relatively easy burden to meet.

127

The

benefit of a “negligence per se” standard would be to give the injured party

the same advantage as strict liability does.

128

Essentially, this theory treats

any accident directly resulting from an autonomous car as being akin to a

design or manufacturing defect, but without having to prove the defect

(originally published in 1961) (“There is general agreement that the duty of care of a manufacturer

of products . . . is a duty of ordinary, reasonable care.

The manufacturer must exercise care to

make his product safe for the purpose for which it was intended.

This, of course, requires that he

exercise care in the design of his product.).” Id.

125. MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916). “If the nature of a

thing is such that it is reasonably certain to place and limb in peril when negligently made, it is

then a thing of danger. Its nature gives warning of the consequences to be expected.” Id.

126. Polinsky & Shavell, supra note 72, at 1469-70.

127. “One engaged in the business of selling or otherwise distributing products who sells or

distributes a defective product is subject to liability for harm to persons or property caused by the

defect.” RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 1 (1998); accord R.J. Reynolds

Tobacco Co. v. Brown, 70 So. 3d 707, 717 (Fla. Dist. Ct. App. 2011).

128. See RESTATEMENT (SECOND) OF TORTS § 286 (1965).

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specifically.

129

This result requires a legislative enactment or some

administrative regulation,

130

the violation of which would be deemed

“negligence per se.”

131

A. The “Negligence Per Se” Test Standard:

In general, proving negligence per se requires: a violation of a law

(statute or regulation); the plaintiff has to be part of the class of people the

law was intended to protect;

132

similarly, there may be a parallel private

right of action in keeping with the intent and purpose of the law; and this

right should be compatible with the legislative scheme.

133

Importantly, in

the context of products liability, failure of a manufacturer to comply with

marketing or design statutory requirements renders the product ‘per se’

defective.

134

To remedy the problem discussed herein, there should be a “negligence

per se” test standard

135

that allocates negligence based on either

legislatures’ assessment that the vehicles are “inherently dangerous”

136

until

proven otherwise, or, alternatively, and much more viable and likely, if the

autonomous cars are marketed for full autonomous use, then human drivers

ought to be deemed not negligent and manufacturers should be per se liable

for any injury resulting from complete and proper autonomous use,

provided there are no intervening causation factors. This would eliminate

an inevitably muddled inquiry as to what is negligent conduct. If the

legislature approves the vehicles, and does not require the human driver to

pay attention at the wheel, and the marketing of vehicle as well as the

warnings for the car do not suggest it is critical to be attendant at the wheel,

129. See Dan B. Dobbs, THE LAW OF TORTS 323 (WEST 2001).

130. RESTATEMENT (SECOND) OF TORTS § 286 (1965).

131. See Martin v. Herzog, 126 N.E. 814, 815 (N.Y. 1920). Justice Cardozo, in a buggy and

automobile collision case, found the “unexcused omission of the statutory signals” (regarding

lights) to be “more than some evidence of negligence” but “negligence itself.” Id.

132. See, e.g., Martin v. Shell Oil Co., 180 F. Supp. 2d 313, 324 (D. Conn. 2002).

133. See RESTATEMENT (SECOND) OF TORTS § 286 (1965).

134. RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 4(a) (1998).

135. RESTATEMENT (SECOND) OF TORTS § 288B (1965) (“Where a statute or ordinance is

adopted by the court as defining the standard of conduct of a reasonable man under the

circumstances . . .” an unexcused violation is usually said to be “negligence ‘per se’ . . . . This

means that the violation becomes conclusive on the issue of the actor’s departure from the

standard of the conduct required of a reasonable man . . . .”).

136. An instrumentality is considered “inherently dangerous” only if it is dangerous in a non-

defective state. An example is explosives. Though refining what “inherently dangerous” means

can be challenging as it also applies to activities. See Huddleston v. Union Rural Elec. Ass’n, 841

P.2d 282, 286 (Colo. 1992).

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then any accident resulting from decisional failure or miscalculation on the

part of the vehicle should be held to be a “negligence per se.”

Accordingly, any driver conduct to the contrary, namely: the human

disobeying the law requiring attentiveness at the wheel and disregarding

marketing information and warnings that unambiguously strongly

encourage attentiveness at the wheel, should be deemed “negligence per

se.”

The federal and state law, manufacturer’s marketing information, and

the car’s warnings information, will be easily determinable. The driver’s

position in the car will also be determinable, presumably based on scanners

and sensors and any human activity with the car’s steering wheel and

brakes, so that the car can get the driver’s attention to alert her of an

emergency.

137

Additionally, witnesses may be useful here. What cannot be

determined consistently is the degree of blame and negligence if left to the

subjective interpretations of judges who may have different statistical

information or cultural perspective

138

and different sensibilities regarding

technology.

139

Moreover, this Comment argues that the mere fact of having these cars

on the market will invite distracted driving or the driver taking a nap.

140

After all, as noted, one sees people breaking the law when they text in their

cars all the time.

141

Additionally, autonomous cars will allow people to not

need to drive themselves, drivers’ skills will dwindle, eventually,

generations will not develop those skills as well altogether. Consider the

time when a human driver would have to take over would be during an

emergency. How likely is it that the human driver will be competent then

and able to follow directions or be able to perform perfectly? Arguably, not

very likely.

Importantly, as noted above, pilots are usually found to be at fault

when in emergency settings they take over from the auto-pilot mode

because plane accidents are attributed to pilot error and pilots’ inability to

properly follow directions in emergency situations.

142

It might surprise one

137. See NAT’L HIGHWAY TRAFFIC AND SAFETY ADMIN., supra note 4, at 3; see Heather

Kelly, Driverless Car Tech Gets Serious at CES, CNN (Apr. 7, 2014, 8:52 AM), http://

www.cnn.com/2014/01/09/tech/innovation/self-driving-cars-ces/.

138. See Wayne Cunningham & Antuan Goodwin, Six Reasons to Love, or Loath,

Autonomous Cars, CNET (May 8, 2013, 2:29 PM), http://www.cnet.com/news/six-reasons-to-

love-or-loathe-autonomous-cars/.

139. See Technophobia, supra note 95.

140. See Howley, supra note 36.

141. See TEXTING AND DRIVING SAFETY, supra note 99, for statistics regarding unlawful

texting while driving.

142. Brouse v. U.S., 83 F. Supp. 373, 374-75 (N.D. Ohio 1949).

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to know that pilots’ mere reliance on autopilot is considered a safety hazard

for airplane passengers.

143

Therefore, having any “at fault” injury resulting from normal use of an

autonomous car should be held to be ‘negligence per se’ on the part of the

manufacturer. This is consistent with the notion that any failure of

computer software or technical tool would fall into the category of

“products.”

144

As noted above, the only exceptions to ensuing liability

should be unforeseeable misuse

145

and obviously any intentionally tortious

conduct

146

on the part of the human driver.

In light of the above analysis, the proposed negligence per se test

would hold the manufacturer of the autonomous car liable where: 1) it was

driven in a state in which it is lawful to drive autonomous cars in a fully

autonomous fashion; 2) the autonomous car marketed to be driven as such

and did not require consistent human driver-attentiveness;

147

3) the

autonomous car was the proximate cause of the car accident and the alleged

injury, meaning the autonomous car/driver are the “at fault” party; and 4)

there was no intervening unforeseeable misuse or intentionally tortious

conduct by the human operator of the autonomous vehicle.

Of course, having a negligence per se standard merely establishes

liability.

148

In wanting to avoid the problem of needless complicated and

expensive litigation, an insurance solution ought to do the trick.

143. Casey Newton, Reliance on Autopilot is Now the Biggest Threat to Flight Safety, Study

Says, THE VERGE, (Nov. 18, 2013, 9:23 PM), http://www.theverge.com/2013/11/18/5120270/

reliance-on-autopilot-is-now-the-biggest-threat-to-flight-safety.

144. See Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1035-36 (9th Cir. 1991) (holding that

computer software and even certain scientific data charts that fail to yield correct and expected

results may be considered a product for purposes of product liability).

145. A manufacturer will likely not be held liable for an injury resulting from a product if that

product was unforeseeably misused. RESTATEMENT (THIRD) TORTS: PROD. LIAB. § 2 cmt. p

(1998).

146. See, e.g., Levin v. U.S. 133 S. Ct. 1224, 1228 (2013) (holding that intentional torts were

exceptions to the Federal Tort Claims Act).

147. For this prong, at the very least, the issue of attentiveness should only be relevant if there

are specific conditions, such as snow, that would require human driver attentiveness.

148. It is beyond the scope of this Comment to address breach of warranty claims that the

owner of an autonomous car may make under the Uniform Commercial Code (U.C.C.). However,

it should be noted that if an autonomous car owner were sued, she could cross-claim or third party

claim against the manufacturer under a breach of express or implied warranty theory. See U.C.C. §

2-313(1)(a) (2012); § 2-314; § 2-315.

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204 SOUTHWESTERN LAW REVIEW [Vol. 44

B. Legislative Insurance Requirements (State) & Tax-Incentive Schemes

(Federal)

Congress has allowed auto insurance to remain the province of state

law.

149

Thus, there should be state requirements for anyone with an

autonomous vehicle to have a higher level of insurance (which each state’s

legislature can establish). There is already a model for this because cars

with racing engines or other similar features require higher insurance

coverage.

150

Since these cars will already be considered luxury the extra costs

should not be a big deal or a deterrent. Additionally, costs can be offset by

the manufacturer securing bulk (wholesale rates). This would protect all

involved: manufacturer, driver, and the third-party injured. And insurance

companies could do well too, just like with Obamacare,

151

they are

guaranteed the business and presumably, the need for payouts to

compensate accident victims should be minimal.

Moreover, the federal government can incentivize the development of

this safer, more eco-friendly, and pro-productivity technology by making

the cars more affordable in giving a tax break as was done for electronic

vehicles in the United States.

152

For the sake of uniformity and protecting

an important technological innovation with significant public safety

implications, it is advisable that there be federal legislation regulating

autonomous vehicles. Examples of this are: airbag regulations,

153

seatbelt

149. Robert W. Peterson, New Technology-Old Law: Autonomous Vehicles and California’s

Insurance Framework, 52 SANTA CLARA L. REV. 1341, 1343 (2012). See McCarran-Ferguson

Act 15 U.S.C. §§ 1011-1015 (2012).

150. “Horsepower can directly impact the cost of your insurance. The more horsepower your

vehicle has, the likelier you are to drive at faster speeds and as such, the higher the risk of an

accident. Different trim levels with varying engine sizes, even among the same makes and models,

can bring differences in insurance premiums based on engine size.” The Most Expensive and

Least Expensive Cars to Insure, KELLEY BLUE BOOK, http://www.kbb.com/car-advice/articles/

the-most-expensive-and-least-expensive-cars-to-insure/?r=558365543838590400 (last visited

Mar. 21, 2014).

151. See Bruce Japsen, Despite Glitches, Obamacare Profit Windfall to Insurers Well

Underway, FORBES, (OCT. 26, 2013), http://www.forbes.com/sites/brucejapsen/2013/10/26/

despite-glitches-obamacare-profit-windfall-to-insurers-well-underway/.

152. U.S. Dep’t of Energy, Tax Incentive Information Center, FUELECONOMY.GOV,

http://www.fueleconomy.gov/feg/taxcenter.shtml (last visited Mar. 21, 2014). Israel recently

passed legislation giving tax incentives for safety systems in new vehicles but is experiencing

issues due to a lack of standardization which should not be an issue in the U.S. given the work in

progress by the Society of Automotive Engineers and the NHTSA. See Alexander, supra note 53.

153. Under National Traffic and Motor Vehicle Safety Act, Congress intended for federal law

to dictate boundaries of manufacturer’s legal duty with respect to certain aspects of motor

vehicle’s design and manufacture. However, state law is permitted to set standard of care in

exercise of that legal duty. Johnson v. General Motors Corp., 889 F. Supp. 451,457-58 (W.D.

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regulations,

154

and regulations of all-terrain vehicles (ATV) on federal

lands.

155

At least this type of regulation, for autonomous cars, should apply

to all federal highways and federal parks etc. The fifty states would ideally

be consistent too for the benefit of interstate travel and appropriate notice

and consistency in terms of drivers’ liability. Lastly, similar to what the

federal government does in regard to vaccine manufacturer’s liability, the

government could immunize manufacturers of autonomous cars from

liability based on meeting certain safety and design criteria, at least for the

Interim Period. This could be justified given the expected public benefit

and would help incentivize innovation and minimize any burden on drivers,

injured parties and manufacturers.

156

Since autonomous cars will very likely benefit society as a whole, as

well as benefiting the users and the manufacturers, it stands to reason that

the associated costs of liability in the Interim Period should be borne by all

three. Hence, the manufacturers could underwrite some of the increased

insurance costs as well as endeavor to provide the volume discount to

customers. Consumers should also expect to pay a bit more,

157

as they

would for any luxury car, and the government could offset costs by

affording tax breaks, or, alternatively, providing subsidies. This would be a

very manageable win/win, pro-market and pro-consumer solution for all

involved.

C. Discovery Recommended Legislative Requirement:

Should the cause of the accident (the cause of the negligent driving) be

disputed, to avoid costly discovery burdens on the potential plaintiff, the

legislature should require that the black data box in the autonomous car be

made accessible to the court and the opposing party, immediately upon a

pre-litigation request. Litigation costs continue to rise for corporate

Okla.1995). Federal airbag regulation preempts state law. See Geier v. Am. Honda Motor Co.,

529 U.S. 861, 865 (2000).

154. “The 1989 version of Federal Motor Vehicle Safety Standard 208 (FMVSS 208)”

required “auto manufacturers to install seatbelts on the rear seats of passenger vehicles.”

Williamson v. Mazda Motor of Am., Inc., 131 S. Ct. 1131, 1132 (2011).

155. 15 U.S.C.A. § 2089 (West 2009).

156. See generally National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1-300aa-34

(1986); see Marchant & Lindor, supra note 110, at 1331, 1337-78 (noting that even with federal

protections in place, occasionally the vaccine manufacturer has been held liable when the products

lead to injuries falling outside the scope of protections of federal legislation).

157. Liane Yvkoff, Many Car Buyers Show Interest in Autonomous Car Tech, CNET (Apr.

27, 2012, 10:32 AM), http://www.cnet.com/news/many-car-buyers-show-interest-in-autonomous-

car-tech/.

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206 SOUTHWESTERN LAW REVIEW [Vol. 44

defendants

158

and since there will be no way for a fact finder or insurance

company to resolve the matter without the black box data, there is no just

reason to increase costs and inefficiency by delaying in turning over or

obfuscating access to that data.

159

Autonomous car manufacturers and

users, if required to both have and preserve black boxes that record

everything about the use and operation of the car, can also be required to

turn the data over immediately, in order to avoid waste of time and money

in achieving justice.

CONCLUSION

This Comment has summarized the attending legal liability issues

associated with the pending entrance of autonomous cars into the

marketplace. Specifically this Comment analyzed the problem of

establishing liability when an autonomous car gets into an accident that is

not overtly caused by a particular parts failure akin to typical products

liability claims.

In preparation for this exciting new technological development, instead

of reacting piecemeal to whatever accidents do occur, the legislature can

prophylactically remedy any potential confusion and murkiness in

establishing liability such that innocent victims are not limited to the high

cost of litigation in order to secure justice. This Comment argued that

society should place the liability on the manufacturer in order to motivate

safety development, as opposed to worrying about hindering it. Ultimately,

if the autonomous cars perform as predicted, it should be that “at fault”

accidents are few and far between. In the Interim Period, someone has to

pay the price, and since manufacturers and society have more to gain, it

should be on them both, but not the third party injured plaintiff who may

have been better off had a human driver been attentive at the wheel. The

judiciary should react uniformly, based on an established standard of what

it means to drive a car marketed to be autonomous, as long as the human

driver is negligence-free in operating the autonomous car.

158. LAWYERS FOR CIVIL JUSTICE ET AL., LITIGATION COST SURVEY OF MAJOR COMPANIES,

2010 CONFERENCE ON CIVIL LITIGATION, DUKE LAW SCHOOL 2 (May 10, 2010),

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/Litigation

%20Cost%20Survey%20of%20Major%20Companies.pdf.

159. See Jaclyn Trop, A Black Box for Car Crashes, N.Y. TIMES, July 22, 2013, at B1,

available at http://www.nytimes.com/2013/07/22/business/black-boxes-in-cars-a-question-of-

privacy.html?pagewanted=all&_r=0 (event data recorder is more commonly known as a “black

box”). Presently, both California and Nevada require black boxes to be present and for the data to

be stored for three years. CAL. VEH. CODE § 38750(c)(1)(G) (2013); NEV. ADMIN. CODE §

482A.110(2)(b) (2012).

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While there are other concerns such as hacking,

160

terrorism, or just

added crime through hacking

161

that are beyond the scope of this article, the

states and federal government will be better able to and more appropriately

focus on those types of more specific concerns once the basics of who is

liable for negligent driving is efficiently squared away. In the meantime,

this Comment urges a legislative and judicial response to autonomous cars

that will facilitate their potential positive impact on our society without

penalizing non-users who may inadvertently be hurt by them, especially in

the early stages of their entry into the market.

Orly Ravid**

160. See English, supra note 54.

161. See Tom Krishner, Associated Press, Hackers Find Ways to Hijack Car Computers and

Take Control, FINANCIAL POST, (Sept. 3, 2013, 11:28 AM), http://business.financialpost.com/

2013/09/03/hackers-find-ways-to-hijack-car-computers-and-take-control/?__lsa=0376-eb61.

** SCALE™ student at Southwestern Law School, J.D. 2014. Special thanks to Professor

Alan Calnan and Dean Rolnick for their sage guidance. Many thanks to Erin Carter, Carly

Sanchez, Melissa Vasquez, and Tyler Morant for help with this article and other great things, too

numerous to list herein. Very special thanks to the Honorable Yvette Palazuelos for all her

mentorship and support overall.