Autonomous Cars: Who’s to Blame?

By Danny Ho

The world may soon enter into a new era of transportation – autonomous cars. What was once a futuristic concept that people only toyed with in their imaginations is increasingly becoming a reality. These are cars that drive themselves through the use of sensory technologies such as radar, global positioning systems (GPS) and cameras. Technically speaking, passengers in such a car could sleep or even read a book while the car navigates itself to the desired location.

Aside from passenger luxury and convenience, there are other advantages to a road system dominated by autonomous cars. Most importantly, the use of autonomous cars could actually reduce the occurrence of traffic collisions generally by virtually negating instances of human driving errors such as tailgating, aggressive driving, and lack of attention. The consulting firm McKinsey & Company even estimates that, if the use of autonomous cars become widespread, traffic collisions could be reduced by as much as 90% nationally. In addition, autonomous cars may provide for higher speed limits and thus smoother and shorter travel times because of a decreased need for safety gaps between cars. But despite these advantages, autonomous cars can still get in traffic accidents. In fact, one of Google’s famous self-driving cars got into a serious accident earlier this year when it drove directly into a van at an intersection.

Because even autonomous cars cannot avoid all traffic collisions, an important legal question arises: who is liable when an autonomous car is involved in a collision? If the car can fully drive itself, surely the actual human individual in the car cannot be blamed for any error. For instance, a Nevada law concerning autonomous vehicles explicitly states that human operators of these cars do not have to navigate or monitor the car while the car is driving autonomously. Rather, a logical conclusion would be to hold the manufacturer of the car liable instead, because the manufacturer is “ultimately responsible for the final product.”

Still, manufacturers should not forego pursuing this technology. There are actions autonomous car manufacturers can take to legally protect themselves. In court, they may shift the liability for a collision to the human operator via an assumption of risk defense. This defense requires both the manufacturer to disclose all the known potential risks of the car to the operator and the operator to knowingly and willingly accept these risks at the outset. Assuming both these conditions are met, the manufacturer could then use assumption of risk as a defense against legal actions arising from traffic accidents involving their autonomous cars. Another protection for manufacturers could be in the form of legislation. For example, current Nevada law on autonomous cars states that manufacturers are not liable for damages to any person where the injury was caused by a defect in the self-driving software installed in the car by a third party. Ultimately, manufacturers are not completely defenseless in the case of liability—they may simply shift the damages to a third party if legislation permits or to the driver if they fully disclosed the risks.

One surprising point of interest is that manufacturers of autonomous cars may not actually be concerned with their liability exposure in the event of traffic collisions. For instance, an analyst at Kelley Blue Book, a vehicle valuation and automotive research company, says that “Google is okay with this thinking because it considers the likelihood of a Google car causing an accident very, very low.” This suggests that manufacturers may be willing to take on the full cost of future accidents because the benefits of selling the cars may outweigh the slim risk. But whether or not most autonomous car manufacturers are thinking along the same lines as Google, moving towards a future road system of autonomous cars should not be halted because manufacturers fear liability. They are not defenseless. Those manufacturers should instead, preemptively look to implementing their own legal safeguards and encouraging their legislators to do the same.