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March 1st, 2017
The era of driverless vehicles is fast approaching, heralding the possibility of a significant drop in automotive fatalities – but also raising a completely new set of vehicle safety challenges. Regulatory responsibility for the safe operation of all motor vehicles is divided between the federal and state governments. Federal responsibility typically focuses on the vehicle manufacturers and enforcement of safety standards, while state responsibilities are geared more toward drivers in terms of licensing and the enactment of traffic laws. As more and more driverless vehicles are put onto our roadways, drivers will become less and less of a focus with respect to road safety, and state’s roles in maintaining safe roadways are likely to diminish. Instead, the focus will likely be on ensuring that automakers sell driverless vehicles that reliably operate without causing collisions. And while the goal of driverless technology is to eliminate collisions, they will almost certainly continue to occur for the foreseeable future. So there must be a framework for determining liability when they occur.
To that end, the U.S. Department of Transportation and the National Highway Traffic Safety Administration recently issued the first Federal Automated Vehicles Policy. The Policy sets for the manufacturer guidelines for the safe design, development and testing of self-driving vehicles. It also gives state lawmakers a “model state policy” for permitting testing, while inviting states to consider the issue of liability in a collision caused by a self-driving vehicle and what type of insurance coverage should be mandated. To date, 35 states have introduced legislation to regulate automated vehicles, and while such legislature has stalled in most states, a few, including California, Michigan, Nevada and Tennessee have enacted laws concerning the testing of self-driving cars. More states will consider such testing regulations this year and perhaps even take up the DOT/NHTSA’s invitation to consider liability legislation, and therein lies the problem.
Jurors and judges – not legislators – determine liability in auto collision cases, and every state already has the laws necessary to determine responsibility for a motor vehicle collision. The last thing the public needs is its state legislature enacting liability laws that, for instance, immunize manufacturers from collisions where they can demonstrate their software was hacked, which is what Michigan has done. Legislation like this hardly promotes safety when a manufacturer can be absolved of liability for hacked software without any investigation at all into what that manufacturer did or could have done to prevent such a well-understood risk. While it remains to be seen what approaches states will take, there is no doubt that this issue will be addressed by state legislatures across the nation in the near future. When it comes to your state, please pay attention to these bills and make sure that the legislative role in liability questions stays limited to reinforcing the commonsense logic that has served all of us very well over the years – namely that the folks who make the car, and not the folks injured by it, bear the costs of injuries when they occur.
