Tom Branigan on Highly Autonomous Vehicles

By Steve Thorpe

Legal News

As manufacturers, software developers and government agencies move forward on highly autonomous vehicles ("HAVs") also known as "driverless cars" there are a slew of everyday issues to be considered, many with legal implications. Tom Branigan, managing partner of Bowman & Brooke LLP's Detroit office, has appeared as trial or lead counsel in 30 states and has obtained major verdicts and judgments for automotive OEMs and suppliers. Bowman and Brooke LLP is a leader in automotive product liability defense. The firm's clients include most of the major OEMs manufacturing motor vehicles today as well as major technology companies that are leading the development of autonomous vehicles for the future. Branigan is also a member of the Society for Automotive Engineers. John Black, an associate in the firm's Detroit office, was a significant contributor to this interview article.

Thorpe: Those who follow "driverless car" developments differ on whether that world is right around the corner or decades away. What sayest thou?

Branigan: From a technology standpoint, we are just about there. Companies like Google, GM, Audi, Tesla, Volvo, Uber, and Ford have been very open about their efforts to develop highly-autonomous vehicle (HAV) technology, and one need only wander around Mountain View, Calif., or the University of Michigan's "Mcity" to see how far this technology has come the last few years.

While legally operating HAVs on public roads today generally requires the presence of a human operator who can take over the vehicle in an emergency situation, that hasn't stopped companies from announcing bold plans to move beyond testing in the very near future. Ford, for example, has announced its intention to have HAVs available for ride sharing programs by 2021. And Uber is currently testing this type of platform in Pittsburgh and San Francisco with these "safety drivers" on board.

It is also important to note that there are different levels of automation, so there are a lot of vehicles on the road today that already have "autonomous" capabilities such as automatic parking or advanced emergency braking systems. The Society of Automotive Engineers (SAE) has outlined five levels of automation from no automation, to driver assistance, and all the way through to full automation, and it is the latter levels of automation that garner most of the interest from the public and regulators (i.e. fully-autonomous mode, or fully-autonomous mode under certain conditions).

What is likely years away is a regulatory framework that would allow for a full-scale deployment of HAVs across the country. The National Highway Traffic Safety Administration (NHTSA)-the federal agency that oversees the writing and enforcement of Federal Motor Vehicle Safety Standards (FMVSS)-has readily admitted that the technology is moving much faster than their ability to regulate it. So while companies and certain states may be ready to allow HAVs on their roads, NHTSA has made it very clear that even though no FMVSS exists yet on HAVs, NHTSA has the authority to identify safety defects and issue recalls of vehicles or equipment they deem to pose an unreasonable risk to safety.

Thorpe: As manufacturers are programming the "brains" of these autonomous vehicles, what sort of legal issues will they grapple with?

Branigan: A lot! From a regulatory standpoint, NHTSA released its much anticipated "Federal Automated Vehicles Policy" this past September. While this policy does not yet have the force of law, it outlines certain responsibilities that manufacturers and developers of HAV technology will have in ensuring these vehicles are safe. Manufacturers will potentially have to deal with pre-sale certification through NHTSA, as well as on-going reporting responsibilities detailing safety-related incidents. NHTSA of course has the ability to order recalls and issue significant monetary penalties to OEMs for safety violations, and that will carry-over to HAVs.

When it comes to civil liability, that is the million (or should I say "billion!") dollar question. The shift from a human driver making driving decisions, to the vehicle itself making driving decisions, has the potential to significantly alter liability apportionment. Traditional automotive-negligence suits would no longer be based on a human driver's mistake, rather, a decision (or a "failure") or the vehicle itself. There have been a number of theories as to how best to tackle the civil liability question. Will the owners of autonomous vehicles be required to carry insurance and be ultimately responsible for any accident their HAV is involved in, or will this liability be faced by manufacturers? The level of automation could also have a major impact on liability too did the human driver have the ability to take over in an emergency, or was it a fully-autonomous vehicle without such capability? One thing that is safe to say is that lawyers will continue to cast the net wide when it comes to seeking recovery in motor vehicle accidents and will not hesitate to sue manufacturers, suppliers, owners, passengers, or even government agencies responsible for roads and signage.

Thorpe: Government federal, state and local will be heavily involved in regulating the HAV scene. What's going on there?

Branigan: One of NHTSA's biggest concerns is that inconsistent laws and regulations will be enacted across the country as several states have been very aggressive in trying to create a friendly environment for companies to come in and develop this technology by enacting laws and issuing policies related to HAV testing on public roads. These include, among others, Arizona, California, Florida, Nevada, and of course, right here in Michigan. Just a couple weeks ago, Governor Snyder signed a bill that will allow private citizens to buy and use fully-autonomous vehicles when they are available. But right now, almost all laws and policies in place deal with HAV testing, and HAVs on public roads are generally required to have a human operator that can take over if necessary. Laws related to full deployment of HAVs to the public are still in the works. In addition to Michigan, California, for example, has also proposed draft deployment regulations for HAVs.

At the federal level, other than from the aforementioned "Federal Automated Vehicles Policy" and some previous policy pronouncements, NHTSA has yet to issue any official rule-making on HAVs. However, they are closely monitoring the development of this technology, and are working with state governments and DMVs. NHTSA has also released a "Model State Policy" which sets out regulatory responsibilities for each branch of government, and has made it clear that states will have all sorts of responsibility when it comes to HAVs including registration and titling, and liability apportionment between owners, operators, passengers, and manufacturers.

Thorpe: Insurance companies also have big decisions to make about how they will handle HAVs. What are some of those issues, especially the legal ones?

Branigan: Insurance of HAVs is a unique issue. Private insurers are generally free to insure whatever and whoever they wish, so market forces will certainly be a factor. Currently, companies involved in testing HAVs on public roads are required to provide DMVs with proof of insurance or an ability to satisfy a judgment for damages in the millions of dollars, and it would be safe to assume that state laws related to mandatory insurance will carry over to HAVs. What may change is that OEMs and suppliers may be called upon to assume even greater responsibility for accidents than accepted today. Some OEMs may be willing to take on this responsibility, perhaps to ensure this technology makes it to market as soon as possible. Volvo, for example, has pledged to be "fully liable" for accidents caused by HAV technology if injuries or damage is caused by a defect in its HAVs.

Thorpe: Let's take a real world scenario: I'm sitting in the back of my HAV and it gets in an accident. How might liability work?

Branigan: Right now, liability would have to be sorted out with the laws currently in effect when it comes to motor vehicle accidents and product liability. This would be a complicated task as laws and previous jurisprudence have never really faced situations where the "driver" of the vehicle was not a human. The intersection of motor vehicles and liability has always assumed that a human driver and a manufacturer will both act reasonably and responsibly, but in this scenario, the only action the passenger probably took was inputting a destination. So the vehicle and its manufacturer will make and execute the actual "driving" decisions. This will lead to a shift in liability from the traditional human driver to the product and the product manufacturer. However, I do not see a day when the passenger of a HAV operated in a fully autonomous mode is completely immune from liability if a crash occurs. Questions over the passenger's (would be driver) legal duty and ability to prevent the crashes that exist today for traditional vehicles will remain even as this technology rolls out; in my view.

Thorpe: What do you see as the single biggest legal issue that must be resolved for this brave new HAV world to arrive?

Branigan: I think you have hit it right on the head with your previous questions liability for accidents. Liability will pose complicated issues that will need to get worked out in the courts and legislatures. There is no shortage of scenarios one can dream up when it comes to accidents involving HAVs that pose complicated questions about liability. What if a non-autonomous vehicle crashes into a HAV should the HAV have predicted this and implemented a defensive maneuver? What if a HAV has to choose between a maneuver that may injure other drivers/ pedestrians, or will injure its passengers?

Published: Thu, Jan 12, 2017

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