If Two Cars Crash and No One Is Driving Them, Does It Make a Sound? Yes: Ka-Ching!
If Two Cars Crash and No One Is Driving Them, Does It
Make a Sound? Yes: Ka-Ching!
By Keith Naughton & Margaret Cronin Fisk
December 22, 2015 — 2:00 AM PST
Imagine a robot car with no one behind the wheel hitting
another driverless car. Who’s at fault?
The answer: No one knows. But plaintiff’s lawyers are
salivating at the prospects for big paydays from such accidents. If computers
routinely crash, they say, then so will cars operated by them. And with no one
behind the wheel, lawyers say they can go after almost anyone even remotely
involved.
“You’re going to get a whole host of new defendants,”
said Kevin Dean, who is suing General Motors Co. over its faulty ignition
switches and Takata Corp. over air-bag failures. “Computer programmers,
computer companies, designers of algorithms, Google, mapping companies, even
states. It’s going to be very fertile ground for lawyers.”
Driverless cars from Google Inc. and other manufacturers
are touted as leading to an accident-free future, where precise, robot reflexes
keep passengers out of harm’s way. That automotive utopia may one day eliminate
death on the highway, proponents say. But before then, it’s inevitable that
first-generation robot cars are going to collide with other driverless vehicles
and those with accident-prone humans behind the wheel.
Possible Roadblock
“There is going to be a moment in time when there’s going
to be a crash and it’s going to be undetermined who or what was at fault,” said
David Strickland, former head of the National Highway Traffic Safety
Administration and now a partner at the Venable LLP law firm in Washington.
“That’s where the difficulty begins.”
Consumer concerns about liability could represent a
roadblock to acceptance of driverless cars. That’s why Volvo Cars, Google and
Daimler AG’s Mercedes-Benz have all pledged to accept liability if their
vehicles cause an accident.
“We want customers to trust we’ve done a really good
job,” said Anders Eugensson, Volvo’s director of government affairs. “That’s
why we say if anything happens, we assume liability. We feel we can’t launch
vehicles to customers unless we’re able to make that statement.”
But plaintiff’s lawyers don’t make much of that pledge,
which they see as merely a marketing ploy.
“Every car manufacturer says, ‘We absolutely stand behind
our car if there’s anything wrong with it,”’ said David Bright, a Corpus
Christi, Texas, lawyer who represents victims in auto-defect cases. “Then they
say, ‘There’s nothing wrong with it.’”
Not Foreseen
What makes the issue so tricky is that current law holds
a car owner, often the driver, responsible for accidents, first and foremost.
If an owner wants to blame the manufacturer, then he or she must prove the
company was negligent in some way. But modern product-liability law didn’t
contemplate cars without drivers.
“There’s going to have to be some changes to the laws,”
Strickland said. “There is no such thing right now that says the manufacturer
of the automated system is financially responsible for crashes.”
And the owners of self-driving cars might not feel so
responsible in a collision, especially if they’re sleeping in the back seat or,
as Volvo’s Eugensson suggested, “updating Facebook.”
No Clarity
“No one wants to be sued or be arrested for a crash that
they were powerless to prevent,” said Bryant Walker Smith, assistant professor
of law at the University of South Carolina who has written extensively on
driverless-car liability.
So the first owner of a driverless car to be in such an
accident will have an opportunity to set a precedent by suing the maker of the
autonomous system, which could be a car company or a technology firm. Such a
case might also test current insurance-coverage notions, which presume that the
driver is primarily responsible.
Anyone suing won’t find much clarity in existing case
law. A search of court records found limited litigation over autonomous
features, such as automatic braking or lane-keeping, which steers a car back
into the correct position if it crosses the line.
Volvo has asked that regulators come up with uniform
rules of the road for driverless cars. The automaker is concerned that “there’s
going to be a patchwork of regulations in the U.S. from different states,”
Eugensson said.
Google’s Track
This month, California proposed rules for driverless cars
that would require a human always be ready to take the wheel. The proposals
would also compel the companies creating the cars to file monthly reports on
their performance. Google said it was “gravely disappointed” in the proposed
rules, which could set the standard for autonomous-car regulations nationwide.
Google, which has developed a car with no steering wheel
or gas pedal, is on a fast track. It plans to make its self-driving cars unit a
standalone business next year and someday operate them in a ride-hailing
service, according to a person briefed on the company’s strategy.
While lawyers focus on the safety of autonomous autos,
human error remains the cause of more than 90 percent of the 33,000 fatalities
on U.S. roads annually. Robot cars are expected to radically reduce that
number. And they’ll be backed by the world’s richest technology companies and
automakers.
“If you have to be hit by a car, then you should hope
that you’re hit by an automated car because you will likely have recourse to a
company or companies with far deeper pockets than your average driver, vehicle
owner or insurance policy,” Smith said.
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