{"id":6565,"date":"2017-05-13T23:42:22","date_gmt":"2017-05-14T03:42:22","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=6565"},"modified":"2019-03-08T19:52:08","modified_gmt":"2019-03-09T00:52:08","slug":"volume23_issue4_webb","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2017\/05\/13\/volume23_issue4_webb\/","title":{"rendered":"Products Liability and Autonomous Vehicles: Who\u2019s Driving Whom?"},"content":{"rendered":"

\"DownloadWebb Publication Version PDF<\/a><\/p>\n

Cite as: K.C. Webb, Products Liability and Autonomous Vehicles: Who\u2019s Driving Whom?<\/em>,\u00a023 Rich. J.L. & Tech. 9 (2016),\u00a0http:\/\/jolt.richmond.edu\/2017\/05\/13\/volume23_issue4_webb\/.<\/p>\n

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By: K.C. Webb*<\/p>\n

I. \u00a0Introduction……………………………………………………………………………… 3<\/a><\/p>\n

II. \u00a0Background……………………………………………………………………………… 6<\/a><\/p>\n

A. \u00a0Background of the Technology and State of the Art……………………… 6<\/a><\/p>\n

B. \u00a0Background of Statutory and Regulatory Reforms……………………… 14<\/a><\/p>\n

C. \u00a0Background of Automotive Products Liability Tort Law…………….. 18<\/a><\/p>\n

1. \u00a0Defects Leading to the First Crash………………………………………… 22<\/a><\/p>\n

2. \u00a0Defects Enhancing Injuries in the Second Crash………………………. 23<\/a><\/p>\n

III. \u00a0How Technology Affects Tort Law…………………………………………….. 25<\/a><\/p>\n

A. \u00a0Drawing Bad Comparisons……………………………………………………… 25<\/a><\/p>\n

1. \u00a0Non-automotive Technology………………………………………………… 26<\/a><\/p>\n

2. \u00a0Automotive Technology………………………………………………………. 27<\/a><\/p>\n

B. \u00a0Applying Outdated Theories and Tests…………………………………….. 29<\/a><\/p>\n

1. \u00a0Consumer Expectation Test………………………………………………….. 30<\/a><\/p>\n

2. \u00a0Risk-utility Test…………………………………………………………………. 31<\/a><\/p>\n

3. \u00a0Crashworthiness Doctrine……………………………………………………. 32<\/a><\/p>\n

C. \u00a0PROPOSAL: Adapting Tort Law Accordingly…………………………… 34<\/a><\/p>\n

IV. \u00a0How Tort Law Affects Technology…………………………………………….. 38<\/a><\/p>\n

A. \u00a0Effecting Design Elements………………………………………………………. 39<\/a><\/p>\n

1. \u00a0Mechanical Components……………………………………………………… 39<\/a><\/p>\n

2. \u00a0Software components………………………………………………………….. 41<\/a><\/p>\n

B. \u00a0Effecting Manufacturer\u2019s Actions…………………………………………….. 46<\/a><\/p>\n

1. \u00a0Applying Some Pressure……………………………………………………… 46<\/a><\/p>\n

2. \u00a0Stopping the Buck………………………………………………………………. 47<\/a><\/p>\n

C. \u00a0PROPOSAL: Limiting, Dividing, and Shifting Liability………………. 49<\/a><\/p>\n

1. \u00a0Going to Capitol Hill…………………………………………………………… 49<\/a><\/p>\n

2. \u00a0Going Dutch………………………………………………………………………. 50<\/a><\/p>\n

3. \u00a0Going it Alone…………………………………………………………………….. 51<\/a><\/p>\n

V. \u00a0Conclusion………………………………………………………………………………… 52<\/a><\/p>\n

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Today the robot is an accepted fact, but the principle has not been pushed far enough. In the twenty-first century the robot will take the place which slave labor occupied in ancient civilization. There is no reason at all why most of this should not come to pass in less than a century, freeing mankind to pursue its higher aspirations.<\/em><\/p>\n

-Nikola Tesla, February 9, 1935[1]<\/a><\/p>\n

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I. <\/a>Introduction<\/strong><\/h3>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 On February 14, 2016, the by-now-famous Google self-driving car crashed itself into a city bus filled with passengers.[2]<\/a> The car was traveling at two miles-per-hour along a busy road in Mountain View, California, when it turned into the lane of the oncoming bus which was traveling at nearly fifteen miles-per-hour.[3]<\/a> Thankfully, none of the fifteen passengers aboard the bus or any of the car\u2019s occupants suffered injuries; however, the accident damaged the side of the bus and the car\u2019s front fender, wheel, and driver\u2019s side door.[4]<\/a><\/p>\n

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[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 While California\u2019s regulatory agencies squabbled among themselves about their role in determining liability, Google admitted to bearing some measure of responsibility.[5]<\/a> The test driver failed to activate the manual override because he believed the bus would slow down and allow the car into the lane.[6]<\/a> Both the test driver and the car misjudged, because three seconds later the car collided with the bus, marking the first time a self-driving car was directly responsible for a crash on public roads.[7]<\/a><\/p>\n

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[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This collision turned up the heat on a conversation already simmering among legal scholars, techies, automobile manufacturers, policy makers, Congress, and consumers about the interaction of this technology and tort law.[8]<\/a> No legal framework currently exists for assigning liability when a self-driving car, like the Google car, crashes itself.[9]<\/a> Some scholars optimistically predict that tort law will handle the introduction of this new technology easily, pointing to how well tort law has handled new technologies since the dawn of the industrial revolution.[10]<\/a> Others foretell tort law\u2019s dismal failure to adapt, predicting that all liability will necessarily shift to the manufacturer, stunting the growth of the industry.[11]<\/a> These doomsday prophets instead pin their hopes on statutory and regulatory reforms.[12]<\/a><\/p>\n

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[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This comment explores two broad themes present in these conversations and makes two respective proposals. First, this comment discusses how autonomous vehicle technology affects the development of tort law, critiquing the ability of products liability law\u2019s current tests to handle autonomous vehicle technology, and proposes a new test. Second, this comment discusses how tort law affects the development of this technology and proposes steps manufacturers should take to limit their liability with respect to autonomous vehicles.<\/p>\n

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[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Part II provides background information, beginning with an overview of how the technology works, to set the stage for a competent discussion of products liability issues. It then lays out the history of statutory and regulatory reforms, and the background of automotive products liability law. Part III presents how technology affects tort law by discussing how self-driving cars would fare under the present automotive products liability tests, and then proposes a new test. Part IV turns the lens around to examine how tort law affects technology. It discusses how liability concerns affect design elements and manufacturers\u2019 actions, and then proposes additional steps that manufacturers should take to limit liability. Finally, Part V is a brief conclusion.<\/p>\n

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<\/a>II. Background<\/strong><\/h3>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 This section discusses how autonomous vehicle technology works, statutory and regulatory reforms, and predictions by other scholars on how products liability law will react to autonomous vehicles.<\/p>\n

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A. <\/strong> <\/a>Background of the Technology and State of the Art<\/strong><\/h4>\n

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[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Misconceptions about autonomous vehicles abound.[13]<\/a> Among them: self-driving cars function through classical computer algorithms (complex if-then decision trees); driver assistance systems will gradually transform cars into completely autonomous vehicles; self-driving cars are programmed to make ethical judgments; and self-driving cars will faithfully follow all traffic regulations.[14]<\/a><\/p>\n

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[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In reality, the levels of autonomous features range from zero to four.[15]<\/a> The lower numbers indicate lower levels of autonomy, and many of the features that fall into these categories, like cruise control, have been on the road for a long time.[16]<\/a><\/p>\n

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[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The higher numbers indicate a greater level of autonomy. Adaptive cruise control, for example, uses radar sensors to measure the distance in front of the vehicle and change speed accordingly to keep a set distance. Although it cannot detect and react to a soft object that appears in front of the car (like a deer) it can come to a complete stop when the vehicle in front of it performs a panic brake. Another semi-autonomous feature, lane assist, uses a camera sensor on the front of the car to detect the white and yellow lines that demarcate lanes. When the car begins to drift in the lane, the car gives a warning, usually audible and visible, sometimes vibrating the seat to wake a sleepy driver; lane keeping assist (the next generation feature of lane assist) helps the car stay in the lane by \u201ccontinuously applying a small amount of counter-steering force.\u201d[17]<\/a><\/p>\n

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[10]\u00a0\u00a0\u00a0\u00a0 More advanced features offer hands-free driving, like Super Cruise (GM), Autopilot (Tesla), and Traffic Jam Assistant (BMW).[18]<\/a> These systems employ the use of radar, sensors, cameras, LIDAR,[19]<\/a> telematics,[20]<\/a> and GPS[21]<\/a> to assess the distance to the next car ahead and find the car\u2019s position on the road, and within the lane.[22]<\/a> Then, like adaptive cruise control and lane assist, the car applies corrective measures to keep itself straight on the road.[23]<\/a> Information, like road closures, is kept current with firmware updates which are administered wirelessly as needed.[24]<\/a> FOTA (firmware updates over the air) has served cell phone end users for years, and now the technology has been adapted for updating automobile software.[25]<\/a> Like a cell phone, the vehicle\u2019s software can be updated sans cables or expensive recalls.[26]<\/a><\/p>\n

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[11]\u00a0\u00a0\u00a0\u00a0 Fully autonomous vehicles (AVs) use all of these technologies, and more. They use sensors and GPS to find the car\u2019s position in the world, and determine what street and what lane the car is in.[27]<\/a> Software interprets and categorizes the images perceived through sensors, like a cyclist or pedestrian; based on these categorizations, it predicts what the objects will do, like cross the street.[28]<\/a> The software then selects a speed and trajectory for the car, like shifting lanes to allow extra room for the cyclist.[29]<\/a><\/p>\n

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[12]\u00a0\u00a0\u00a0\u00a0 Contrary to popular belief, the software is not designed using a complex if-then decision tree to anticipate all possible driving scenarios.[30]<\/a> Instead, it uses an algorithm to categorize the objects it senses.[31]<\/a> The algorithm is fed with oodles of images containing various objects, like a child chasing a stray ball into the street.[32]<\/a> Using pattern recognition (from the field of artificial intelligence) to sort and classify the images it senses, when it sees a new image the algorithm occasionally guesses incorrectly.[33]<\/a> It then alters its internal parameters to increase its sorting accuracy\u2014keeping changes that make the algorithm more accurate, and discarding changes that decrease accuracy.[34]<\/a> When the algorithm later sees new images, it classifies them with a higher accuracy. The algorithm, after a fashion, teaches itself to become a better driver.[35]<\/a><\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0 It is not yet clear how AVs will interact with each other, or with traditional vehicles, to share information through vehicle to vehicle communication (V2V). [36]<\/a> The National Highway Transportation Safety Administration (\u201cNHTSA\u201d) reserved the 5.9GHz spectrum for V2V anticipating its incorporation into vehicles in the near future.[37]<\/sup><\/a> In the meantime, Google\u2019s car taught itself to become a better driver through refinements to the software in the hope that \u201c[f]rom now on, [their] cars will more deeply understand that buses (and other large vehicles) are less likely to yield .\u00a0.\u00a0. than other types of vehicles…\u201d[38]<\/a><\/p>\n

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[14]\u00a0\u00a0\u00a0\u00a0 Since GM unveiled the first fully autonomous concept car at its Futurama exhibition during the 1939 World\u2019s Fair, most major car manufacturers have followed suit, working on their own fully autonomous models, and some have already begun testing on public roads.[39]<\/a> Google boasted that before the Valentine\u2019s Day crash, its test cars had driven roughly one and a half million miles in autonomous mode.[40]<\/a> Google estimated that its AVs will be available for consumption by 2018.[41]<\/a> Other manufacturers targeted 2020 as their release date,[42]<\/a> and the U.S. Secretary of Transportation predicts driverless cars will be \u201call over the world\u201d by 2025.[43]<\/a> AVs promise innumerable benefits to society, like:[44]<\/a><\/p>\n