5 Defenses for Autonomous Vehicles Litigation

If an autonomous vehicle (AV) is involved in an accident, who’s responsible? The car manufacturer? The maker of the automation component parts, such as sensors, cameras or navigation systems? The person who was in the driver’s seat but wasn’t actually “driving”? All three?

Litigation over autonomous vehicles (also referred to as autonomous driving systems or ADS) is in its infancy. The potential theories of liability have not yet been fleshed out or tested in court. But we can expect negligence and products liability lawsuits – not to mention statutory claims – as the government begins regulating. Manufacturers can lean on at least five available defenses if autonomous vehicle litigation arises.

Lessons From Autonomous Vehicle Cases

AVs have already been involved in several crashes. However, in most of these cases either it was clear prior to litigation that the AV was not at fault, or the parties reached a confidential settlement, leaving the industry and its counsel without a legal framework to assign liability in autonomous vehicle litigation.

No Precedent for Claims Against AV Manufacturers in Non-Fatal Cases

In most non-fatal accidents involving autonomous vehicles, authorities have determined that the AV systems were not responsible. For example, in California alone, manufacturers filed 30 AV accident reports between late 2014 and mid-April 2017, and only two were caused by the AV.² Most crashes involved a conventional vehicle rear-ending an AV.² Two publicized non-fatal accidents illustrate the lack of substantive movement in the legal sphere.

In December 2017, a General Motors AV collided with a motorcyclist in San Francisco.³ The AV had begun to switch lanes. When it determined it could not complete the lane change, the AV reversed course and hit a motorcyclist who had started to pass the AV. The motorcyclist declined to file product liability claims and instead sought damages only based on negligence.⁴ Less than six months after the suit was filed, the parties settled with virtually no case development.⁵

In November 2017, a truck backed into Google’s first self-driving shuttle bus in Las Vegas.⁶ According to witness statements, a truck in front of the bus started to reverse, and the bus stopped its forward movement to avoid rear-ending the truck.⁷ While there were no injuries, the AV may have “contributed” to the incident in the sense that a human driver could potentially have backed up further or honked a horn to alert the truck driver. Yet police determined that the truck driver was at fault, and no lawsuits were filed.⁸

No Case Law in Fatal AV Accidents… Yet

Even the fatal accidents do not provide early guidance on issues of fault for accidents involving autonomous vehicles. Of the three deaths that have occurred through AV accidents in the U.S., none have yet produced precedential litigation.

In Florida in May 2016, a Tesla operating in autopilot mode hit a truck crossing a highway when the camera failed to recognize the truck.¹⁰ The Tesla driver was killed.¹⁰ A federal investigation cleared Tesla, concluding that there was no product defect.¹¹ The National Highway Traffic Safety Administration’s (NHTSA) investigation noted that even when using the Tesla’s automated system, “the driver was still responsible for maintaining ultimate control of the vehicle,” and the driver failed to notice the tractor-trailer crossing the street.¹² No civil litigation followed the accident.¹³

In Arizona in early 2018,¹⁴ an Uber operating a Volvo XC90 in autopilot mode with a human safety driver struck and killed a pedestrian attempting to walk her bicycle across a road.¹⁵ The pedestrian’s daughter settled with Uber, and it is unclear whether other family members will bring suit.¹⁶ The Yavapai County Attorney’s Office is considering manslaughter charges against the “safety driver,” who may have been watching streaming television on her phone during the incident.¹⁷ A report by the Insurance Institute for Highway Safety noted that Uber had disabled the Volvo’s collision-avoidance technology, implying that Uber was at least partially responsible.¹⁸

The most recent fatality appears likely to result in litigation. In March 2018, a Tesla Model X in autopilot mode drove into a broken safety barrier in a highway median and its driver was killed.¹⁹ Tesla initially contended that the driver was responsible because he did not have his hands on the steering wheel following several alerts. More recently the company commented, “[a]utopilot does not prevent all accidents… but it makes them much less likely to occur.”²⁰ The driver’s family has announced its intent to file a wrongful death lawsuit against Tesla and potentially the subcontractors involved in design and construction of its autopilot system.²¹ The family’s attorneys note the grounds for the suit may include “product liability, defective product design, failure to warn, breach of warranty, intentional and negligent misrepresentation, and false advertising.”²² If the suit goes forward, it may set important early precedent for how liability is assessed in AV accidents.

Defenses for AV Litigation

Autonomous vehicle manufacturers may consider at least five categories of defenses when litigation in this area arises.

1. Seek to Assign Liability to the Driver and/or Injured Party

Autonomous vehicle manufacturers have benefitted from post-accident investigations in the either explicit or implicit assignment of relative fault among the involved parties. For instance, the police report regarding the non-fatal AV collision with the motorcyclist in California concluded that the motorcyclist was responsible for the accident because he attempted to pass the AV before it was safe to do so.²³ Similarly, police stated the truck driver in Las Vegas was to blame for backing into Google’s AV bus.²⁴

Although it raises the risk of adverse publicity and potential negative jury reactions, manufacturers will have to decide whether to blame the driver and/or the victim in fatal accidents. In all three of the fatal accidents, manufacturers could make a case for at least partial liability by the humans involved. For instance, NHTSA found the driver responsible for the Florida accident involving the tractor-trailer.⁵ Law enforcement’s or government agencies’ formal accident investigations will likely carry greater weight for public or jury perception than a manufacturer’s investigations or experts pointing the finger at an injured or deceased plaintiff or hired “safety driver.” Manufacturers run less risk of adverse jury reactions when relying on official investigations.

2. Claim the Accident Was Unavoidable

Claiming that no human driver or automated system could have avoided the collision is another potential defense. Legal scholar Bryant Walker Smith hypothesized that whether an automated driving system performed unreasonably is determined by whether a human driver or a comparable automated driving system could have done better under the same circumstances.²⁶ No court or regulator has established the standard of reasonableness for the operation of autonomous vehicles.

The advanced technology of AVs allows greater accuracy in assessments. Investigators can gather data from on-board event data recorders (EDRs) to examine how a car behaved during a collision, what systems were being used leading up to and during the crash, and whether those systems functioned properly.²⁷ As AVs proliferate, more information will be available to assess liability in accidents.

3. Deny the Existence of a Defect

NHTSA has implicitly acknowledged as a potential defense the assertion that there was no defect in the design of the autonomous vehicle. In the Florida accident, for instance, NHTSA investigated the crash and concluded that the “autopilot” function was designed to prevent Tesla cars from rear-ending other vehicles, not to handle situations where vehicles crossed the road from intersecting roadways.²⁸ Since the self-driving system was not intended to handle the circumstances of the crash, NHTSA concluded there was no defect in the design or performance of the AV.²⁹

Courts have consistently recognized the general principle that “an automobile manufacturer is under no duty to design an accident-proof or foolproof vehicle,” and AV manufacturers should be able to rely on that principle.³⁰ This defense weakens when the accident circumstance is not a rare occurrence. For example, the truck crossing the highway was a legal maneuver and not uncommon. Courts may ultimately devise a balancing test to determine manufacturer liability.

4. Rely on Industry Standards

To avoid tort liability under a negligence claim, an autonomous vehicle manufacturer must demonstrate that it did not breach the industry standard of reasonable care for manufacturing the product. However, an “industry standard” is only starting to develop. NHTSA has published voluntary guidelines,³¹ but there is no regulatory framework. Indeed, much of the technology is trade secret, and manufacturers are hesitant to share aspects of their businesses.

The earliest AV negligence cases will likely turn on experts asserting what is “reasonable,” with the idea of “industry standards” slowly developing through a combination of case law, government regulations, and AV manufacturer practices and procedures.

Since this technology is new and evolving, manufacturers might benefit from a “state of the art” defense to a design defect claim. Manufacturers could argue that they could not have produced a safer design at the time of the sale because such designs were not technologically feasible at the time of creation.

5. Use Another Defense

As far as injured drivers of autonomous vehicles, manufacturers could invoke the affirmative defenses of waiver, unforeseeable misuse or assumption of risk under certain circumstances.

If a manufacturer or a rideshare company using AVs has required testers or “safety drivers” to sign waivers or similar agreements prior to driving AVs, this could potentially provide manufacturers/rideshare companies with liability protection. In a well-written agreement, the driver would agree to follow certain safety provisions and would indemnify and hold the company harmless from the consequences of violating the provisions.

AV manufacturers could also apply the defenses of misuse or assumption of risk. Scholars note that manufacturers cannot realistically contend that a driver assumed the risk of driving a vehicle using new and untested technology. However, if there is evidence that a driver has abused or changed the sensors or control systems, particularly if such actions are contrary to the company’s express user instructions, manufacturers have a better chance of successfully arguing misuse or assumption of risk by pointing to a driver’s conduct.³²

Since this technology is new and evolving, manufacturers might benefit from a “state of the art” defense to a design defect claim. Manufacturers could argue that they could not have produced a safer design at the time of the sale because such designs were not technologically feasible at the time of creation.³³

If the only damage done is to the AV itself, defendants can invoke the economic loss doctrine. This product liability-specific defense bars product liability tort claims where the damages are strictly financial, and not for bodily injury or damage to property other than the AV.³⁴

Prepare Now for Litigation

As the popularity of autonomous vehicles proliferates, manufacturers should consider potential litigation defenses. Better yet, take steps now to manage risk and avoid litigation. Our next article will outline three risk management techniques for autonomous vehicle manufacturers.

While there are no precedential court decisions involving an autonomous vehicle accident yet, the first one, and many more, are inevitable. As litigation arises, AV manufacturers should prepare to assert defenses described above and watch how courts and juries assess and apply those defenses.

This article was published in Law360 on August 31, 2018.

The authors wish to acknowledge the assistance of summer associate Olivia Dworkin in preparing this article.

¹ Jim Miller, California’s Self-Driving Cars Are Rolling – And Sometimes Crashing, THE SACRAMENTO BEE (May 14, 2017), http://www.sacbee.com/site-services/databases/article149993102.html.
² Id.
³ Rachel Graf, GM Hit With First-Known Suit Over Self-Driving Car Crash, LAW 360 (Jan. 24, 2018), https://www.law360.com/articles/1005140/gm-hit-with-first-known-suit-over-self-driving-car-crash.
⁴ Id.
⁵ RJ Vogt, GM Settles First-Known Suit Over Self-Driving Car Crash, LAW 360 (June 1, 2018), https://www.law360.com/productliability/articles/1049776/gm-settles-first-known-suit-over-self-driving-car-crash?nl_pk=3d8c97a2-7cc2-441b-b37f-56ef00851488&utm_source=newsletter&utm_medium=email&utm_campaign=productliability.
⁶ Samuel Gibbs, Self-Driving Bus Involved In Crash Less Than Two Hours After Las Vegas Launch, THE GUARDIAN (Nov. 9, 2017), https://www.theguardian.com/technology/2017/nov/09/self-driving-bus-crashes-two-hours-after-las-vegas-launch-truck-autonomous-vehicle.
⁷ Id.
⁸ Id.
⁹ NHTSA, Special Crash Investigations: On-Site Automated Driver Assistance System Crash Investigation of the 2015 Tesla Model S 70D, at 1 (Jan. 2018), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812481.
¹⁰ Id.
¹¹ Id. at 25.
¹² Id.
¹³ Driver’s Family Doesn’t Blame Tesla for Fatal ‘Autopilot’ Crash, REUTERS (Sept. 11, 2017), https://nypost.com/2017/09/11/drivers-family-doesnt-blame-tesla-for-fatal-autopilot-crash/.
¹⁴ David Kiley, First Death of a Pedestrian Struck by an Autonomous Vehicle May Set Tone For Lawyers and Liability, FORBES (Mar. 19, 2018), https://www.forbes.com/sites/davidkiley5/2018/03/19/the-first-pedestrian-fatality-with-an-autonomous-vehicle-could-set-tone-for-lawyers-and-liability/#5625850233fd.
¹⁵ Id.
¹⁶ Lauren Reimer, Additional Family Members of Woman Killed by Self-Driving Uber Have Hired a Lawyer, AZFAMILY.COM (Mar. 30, 2018), http://www.azfamily.com/story/37850367/additional-family-members-of-woman-killed-by-self-driving-uber-have-hired-a-lawyer.
¹⁷ Ray Stern, Self-Driving Uber Crash “Avoidable,” Driver’s Phone Playing Video Before Woman Struck, PHOENIX NEW TIMES (June 21, 2018), https://www.phoenixnewtimes.com/news/self-driving-uber-crash-avoidable-drivers-phone-playing-video-before-woman-struck-10543284.
¹⁸ Sarah Gardner, Uber Death May Have Been Avoidable With Volvo's Technology, BLOOMBERG (Aug. 7, 2018), https://www.bloomberg.com/news/articles/2018-08-07/uber-death-may-have-been-avoidable-with-volvo-s-tech-iihs-says.
¹⁹ Dan Noyes, Was Mountan View Tesla Crash a Failure of Autopilot, Automatic Braking Systems?, ABC7NEWS.COM (June 7, 2018), http://abc7news.com/automotive/was-bay-area-tesla-crash-failure-of-autopilot-braking-systems/3575773/.
²⁰ Id.
²¹ Minami Takimi LLP, Family of Driver Killed From Tesla Car Crash Hires Minami Tamaki LLP to Explore Legal Options, MINAMI TAMAKI LLP (Apr. 10, 2018), http://www.minamitamaki.com/2018/04/family-of-driver-killed-from-tesla-car-crash-hires-minami-tamaki-llp-to-explore-legal-options/.
²² Id.
²³ Ethan Baron, Blame Game: Self-Driving Car Crash Highlights Tricky Legal Question, THE MERCURY NEWS (Jan. 23, 2018), https://www.mercurynews.com/2018/01/23/motorcyclist-hit-by-self-driving-car-in-s-f-sues-general-motors/.
²⁴ Samuel Gibbs, Self-Driving Bus Involved In Crash Less Than Two Hours After Las Vegas Launch, THE GUARDIAN (Nov. 9, 2017), https://www.theguardian.com/technology/2017/nov/09/self-driving-bus-crashes-two-hours-after-las-vegas-launch-truck-autonomous-vehicle.
²⁵ NHTSA, Special Crash Investigations: On-Site Automated Driver Assistance System Crash Investigation of the 2015 Tesla Model S 70D, at 25 (Jan. 2018), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812481.
²⁶ Bryant Smith, Automated Driving and Product Liability, 2017 MICH. ST. L. REV. 1, 6 (2017).
²⁷ Tina Bellon, Fatal U.S. Self-Driving Auto Accident Raises Novel Legal Questions, REUTERS (Mar. 20, 2018), https://www.reuters.com/article/us-autos-selfdriving-uber-liability-anal/fatal-u-s-self-driving-auto-accident-raises-novel-legal-questions-idUSKBN1GW2SP; see also https://www.nhtsa.gov/research-data/event-data-recorder (defining EDR).
²⁸ NHTSA, Special Crash Investigations: On-Site Automated Driver Assistance System Crash Investigation of the 2015 Tesla Model S 70D (Jan. 2018), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812481.
²⁹ Id.
³⁰ Larsen v. General Motors Corp., 391 F. 2d 495, 502 (8th Cir. 1968).
³¹ NHTSA, Automated Driving Systems 2.0: A Vision for Safety (Sept. 2017), https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf.
³² Stephen S. Wu, Product Liability Issues in the U.S. and Associated Risk Management, in AUTONOMES FAHREN 587 (2015).
³³ Id.
³⁴ Id.