Michael Carey on what’s holding up autonomous vehicle innovation
Autonomous vehicles bring promises of enhanced safety, boosted personal productivity time, eased traffic congestion, and improved fuel economy, among other societal benefits. So what is holding us back? The advancement of the technology itself is one barrier. Another speedbump is consumer acceptance – giving up the driving experience. A third and frequently overlooked factor may be a potentially hostile regulatory and legal landscape for innovators operating in this space.
As with all innovation, the law often reacts and plays catch-up to game-changing products and services. As intermediate technologies such as automatic emergency braking and lane keep assist are more frequently becoming the subjects of products liability lawsuits, the common law legal model for assessing what will eventually become fully autonomous vehicle technologies is already developing.
Michael Carey addresses the legal framework – strict products liability – that has served the interests of injured plaintiffs and auto manufacturers for decades, and why this model is well-suited for the future of auto products liability in the era of autonomous vehicles. Commentators calling for an absolute liability model, or application of the res ipsa loquitor doctrine to cases involving injured parties in autonomous vehicles, should pay attention because these narrow legal concepts are ultimately likely to do more harm than good. With human error underlying the vast majority of all injury crashes, taking the human out of the equation means enormous potential safety benefits. Bad law should not be a deterrent to critical autonomous vehicle innovation and its deployment out onto our roads.
Carey is a trial lawyer with experience in complex commercial litigation and products liability defense. Carey also counsels mobility industry clients on proactive risk mitigation strategies relating to Automated Driving Systems (ADS) and other advanced automotive safety technologies.
What is the legal framework serving the interests of injured plaintiffs and auto manufacturers?
Carey: Vehicles are, at the end of the day, still just products regardless of whether a human or a computer is “behind the steering wheel.”
Autonomous vehicles will change the world in many ways, but the basic platform isn’t changing. We’ll still be riding on four rubber tires down paved roadways at high speed. Given the laws of physics and the relatively fragile human body, plenty can go wrong. Accordingly, when someone alleges they were harmed because of a design defect, a manufacturing defect, or inadequate warnings, the legal framework for vehicles is and should remain strict products liability. Under this framework, a jury is tasked with evaluating the product under the consumer expectations model and/or a risk-utility model. Both strict products liability tests boil down to asking whether the product is unreasonably dangerous. In this framework, sometimes injured plaintiffs recover because the jury is convinced the product could be made safer and that doing so outweighed other practical considerations.
Other times, the jury recognizes that the manufacturer utilized the available knowledge and technology to make a reasonably safe product. The key to strict liability is that, regardless of whether you are an injured plaintiff or a defendant manufacturer, you get your day in court. Other legal frameworks shortcut this important and fundamentally American process.
What is the potential effectiveness of an absolute liability model?
Carey: The argument for an absolute liability model is efficiency. There is no gray area in absolute liability – every injury caused by the use of a product is automatically compensable against the manufacturer. Even if the manufacturer used the utmost care, incorporated the latest and greatest technology, and exceeded every government and industry safety standard by a comfortable margin, the manufacturer is liable. Thus, the absolute liability model eliminates nearly all externalities associated with determining liability. That saves time and money.
Absolute liability is also a form of social insurance. Interestingly, the strict products liability model was founded on the policy that corporations, rather than individuals, were in a better position to defray the risks and costs associated with defective products. Absolute liability is a further extension of that general sentiment. It just skips past asking the question of whether the product is defective or not. Ultimately, though, increased exposure for corporations would be passed along to all consumers in the form of higher prices, or would be reflected in shareholder equity. The money has to come from somewhere. And we have to remember, too, that profitability has always been a major component in advancing safety innovation in the automotive industry.
When people think about absolute liability, they often forget that a product is not defective merely because it can or does cause injury. This is a common logical fallacy that defense lawyers like myself combat in every case. For example, people cut themselves all the time using kitchen knives.
But the knife’s sharp edge is not a defect; it has to be sharp to fulfill its function. Often the utility of a product, like a sharp knife in this example, also creates a risk for personal injury. In the context of driverless vehicles, an essential utility of the product is getting from place to place without having to operate the vehicle yourself. Many would argue computers will actually be much safer drivers than humans, but there will always be risks associated with transportations. And when something bad eventually happens in a driverless vehicle, while it is certainly possible that the crash was caused by an unsafe design, that won’t always be the case. You don’t know until you uncover the circumstances of the particular crash.
Therefore, in assessing the potential effectiveness of an absolute liability model, people should be aware that its implementation must be a policy choice to potentially reduce externalities and spread risk. Absolute liability cannot be based on simply looking at the outcome of a vehicle crash and assuming, out of ignorance, that the manufacturer must be at fault. This is simply backwards logic and it is not the basis for absolute liability. After all, the primary feature of absolute liability is that even though the manufacturer may bear no fault whatsoever, the law de facto assigns responsibility to it for all harm anyway.
How should human error be factored in to legal discussions?
Carey: The phenomenon of judging errors in baseball is a good analogy for thinking about human error on our roads. In every baseball game there are innumerable imperfect plays, even at the major league level, which could be chalked up to human error. Only some of these imperfect plays, in the judgment of the official scorekeeper, are deemed statistical errors. Runs are scored off statistical errors on imperfect plays, and runs are also scored off imperfect pitches and imperfect fielding that are not errors. That’s baseball.
On our roads, human error can cause crashes, but only a certain degree of human error raises to the level of negligence. And negligence, of course, is the pre-requisite to a liability finding. Like the scorekeeper’s judgment in baseball, the legal assessment of driver human error, and whether it raises to the level of negligence, requires a qualitative assessment of the nature and quality of the specific conduct at issue. What this means is that while roughly 94% of crashes are cause by human error, a necessarily lower percentage of crashes are caused by negligence. All negligence is attributable to human error; but not all human error is negligent.
In the context of driverless vehicles, the breakthrough disruption is that removing human drivers from the equation en mass will translate into a substantially lower contribution of human error, and consequently negligence, to the cause of crashes. Safer roads is undisputedly the major impetus for automating driving. But until all vehicles are driverless, if that ever happens, human error will play the same role in legal discussions that it does today – when someone is deemed negligent, a jury must decide what percentage of the injured plaintiff’s harm is attributable to that negligence as compared to the fault of others, including manufacturers who may also be liable under a strict products liability framework.
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