Understanding Self-Driving Car Liability

Liability for self-driving car accidents can fall on the human driver, the manufacturer or even a third party depending on the cause of the accident.  We are just now at the starting block of litigation surrounding self-driving cars.  Guyon Knight from Mound Cotton Wollan & Greengrass, LLP provided an insightful and thorough perspective from a litigator’s point of view of what can be expected, highlighting more questions than answers, which we can expect to see as we wind our way down the road.

Some of the key take-aways from Guyon’s presentation, include the following:

1. 1. Not All Autonomous Vehicles (“AVs”) are the Same.  Automated driving systems (“ADS”) are defined across six levels.Each level describes the role of the ADS and the human driver, ranging from no automation (Level 0) to full automation (Level 5).By way of example, Level 2 are the more common AVs we see on the road today, which include Tesla’s Auto-Pilot systems and Ford MACH-E’s with Blue Cruise.  Level 3 AVs are new to the US market and being introduced by Mercedes with its DRIVE PILOT system.  Essentially, the system is a “conditional automation” system, which drives under specific condition, but the system can request the drive to take over at some point.  Level 4 AVs are the Waymos that you see in places like Phoenix, San Francisco, Los Angeles and Austin, which drive themselves within a specific area without a human driver.  Finally, Level 5 AVs are essentially “fantasy” as Guyon described.
   2. The Regulatory Framework For AVs is Spotty at Best. There is no single federal law for self-driving cars, but the U.S. government regulates them through voluntary guidelines, safety standards and crash reporting requirements issued by the National Highway Traffic Safety Administration (”NHTSA”).  Indeed, the NHTSA stresses that states are responsible for crafting insurance frameworks and allocating liability for AVs. Presently, we are seeing a shift in liability from individual drivers toward vehicle manufacturers and ADS developers.  It safe to say that we’ll likely see more comprehensive rules and guidance from federal and state regulators in the near future.
   3. We are Seeing New Insurance Products and Partnerships Developing in this Space.  Insurance products are evolving to include hybrid policies that cover both the driver and the manufacture, products liability for autonomous system malfunctions and potential cyber liability for technology errors.  Partnerships are forming to meet the needs of the market and these include: (a) Munich Re and Mobileye partnering to assess AV risk by installing aftermarket driver-assistance systems in commercial fleets to collect data to support a new AV-tailored insurance product; and (b) a partnership between Swiss Re and Baidu (a Chinese tech company) looking for risk management solutions for autonomous driving and related technologies in an effort to build insurance products based on how AVs operated differently than human-driven vehicles.
   4. Litigation is at its Infancy but Already Evolving. Litigation has been evolving and increasing in light of technological advances, but we have not seen novel legal holding relating to AVs.  Personal injury cases continue to develop, but the element to watch out for is the potential shifting of liability from drives to manufacturers.  We can also expect to see insurance coverage issues develop as to “who is using the car?”, whether losses arise from a single occurrence or multiple occurrences issues and how to apply other insurance clauses.

As noted, there are lots of questions to be answered as the use and technology surrounding AVs grows, along with the advent of new regulations and insurance products.