Two fatal accidents involving semi-autonomous vehicles occurred in March, increasing the number of reported deaths associated with self-driving cars to at least four and intensifying the focus of autonomous vehicle industry participants on the legal claims they may face going forward.
As responsibility for accidents expands beyond drivers to include the companies that design, manufacture and maintain self-driving vehicles and the technology they rely upon, the pool of companies potentially liable for accidents will deepen.
It may be decades before the goal of autonomous vehicle technology — creating accident-free roadways — is achieved. Until then, industry participants will face liability for accidents and will look to insurance for protection against potential liabilities.
Given the nature of self-driving technology, accidents involving these vehicles will increasingly require product liability coverage in addition to personal or commercial automobile liability coverage. Such coverage will address the exposures of the manufacturers, distributors and retailers of autonomous vehicles and their many parts and systems, whose malfunction might be alleged to have contributed to the cause of an accident. Of course, until a transition to fully autonomous vehicles occurs, automobile coverage for driver error will remain important.
Consider this scenario: A rental car company rents SUVs with autonomous features. When in autonomous mode, the SUVs can drive themselves. The manufacturer markets these autonomous features as Advanced Autopilot. The rental company also installs an aftermarket entertainment system, which allows the driver to stream video while in autonomous mode.
The SUVs also have advanced safety features, including an emergency braking system that automatically applies the brakes when an object is detected. But this feature is disabled when the SUVs are in autonomous mode; instead, the vehicles send a visual cue to the driver to take control.
An individual rents one of these SUVs and puts it in autonomous mode. The vehicle approaches a crosswalk at 35 mph while a pedestrian is crossing. The vehicle's detection systems identify the pedestrian and send a visual cue to the driver to apply the brakes. But the driver is watching a movie and does not respond. The SUV strikes and kills the pedestrian.
Who might face legal claims regardless of their merit?
Vehicle manufacturer: With overall responsibility for the design and production of the vehicle, the manufacturer could face claims. In this scenario, a plaintiff might argue that the manufacturer is liable because it intentionally chose to disable the vehicle's emergency braking feature and marketed the vehicle's autonomous features as Advanced Autopilot despite the need for the driver to pay attention while driving in autonomous mode.
Component suppliers: The companies that supplied the radar, lidar, camera array, navigation sensors and computing and data storage systems may have a solid defense to potential claims in this scenario — the products they supplied worked properly and the accident may have been avoided. But if the system were to fail to identify the pedestrian and alert the driver that a collision was imminent, these companies could face many of the same claims as the vehicle manufacturer.
Entertainment system supplier: The supplier's defense may point to the rental company as the installer of the entertainment system. But because product manufacturers can be responsible for foreseeable uses of their products when installed properly, regardless of who installs them, designing an entertainment system that does not meet regulatory expectations concerning driver distraction may expose these companies to claims.
Rental car company: Although the company may not be liable for manufacturing or design defects, it has a duty to properly maintain its vehicles and avoid modifications that make the vehicle unsafe. Here, a plaintiff may claim that the company outfitted the vehicle with an entertainment system that arguably caused the driver to miss a crucial visual cue. In fact, a ride-hailing service testing autonomous vehicles reached a settlement over a similar incident.
Operator and automobile insurers: Notwithstanding the autonomous features of the vehicle, the accident was caused, in part, by human error. In that respect, this incident is no different from most other accidents: The liabilities arising out of this accident will also implicate auto insurance.
Product liability insurers: The autonomous features of the rental vehicle set it apart from "traditional" car accidents, which are rarely caused by defective vehicular equipment. The cutting-edge hardware and software products that combine to produce an autonomous vehicle will invoke the potential for product liability coverage issued to the manufacturers and distributors of this equipment.
Although attention is shifting toward manufacturer liability, driver error remains a factor to be assessed in autonomous vehicle incidents. At the same time, new theories of liability against vehicle and component manufacturers will also emerge, heightening the need for product liability coverage regardless of the ultimate merit of the claims against supply chain participants. Until the day of error-free, fully autonomous vehicles arrives, we will see increasingly complex questions about the potential liability of autonomous vehicle drivers and manufacturers.