Short article on the dangers of driverless cars

 The National Law Review has published a short comment on "the dangers of driverless cars."  You can read it here.

Podcast: legal implications related to autonomous vehicles

Long time readers of this blog may recall I have posted a few comments and links related to legal and ethical implications related to the use of autonomous vehicles.  See here, here, here, here and here.

Adding to that list, here is a recent podcast on the subject.

Podcast on autonomous vehicles

A recent University of Virginia School of Law podcast addresses the effect of autonomous vehicles on tort and insurance.  You can listen to the program here or read about it here.


Thanks to the TortsProf blog for the link.

Comment on issues and unanswered questions related to autonomous cars

I am sure you have heard by now about an Uber autonomous car killed a pedestrian in Arizona.  The accident was called the first fatality caused by such a vehicle.  At the time Uber was experimenting with autonomous cars in Arizona.  Soon after the accident, the company announced it was terminating the experiment - at least for now.

I have blogged about issues related to autonomous cars before and about some of the possible questions that we will inevitably have to deal with in the near future as accidents begin to happen.  Go here, here and here.

Now comes news that Uber confidentially compensated the family of the pedestrian killed by its robot car.  That was quick and it evidently prevented the publicity that would have resulted from discovery if a lawsuit had been filed. 

But the issues and unanswered questions remain.  This might have been the first pedestrian death caused by an autonomous car, but unfortunately, it is not likely to be be the last.

Which brings me to the comment posted at The Pop Tort addressing some of the issues and questions related to this new topic in Tort law.  You should go and read it here.

GM sued for accident caused by "self driving" vehicle

GM has been testing autonomous vehicle technology on the streets of San Francisco since August 2017, putting the cars in purposefully challenging conditions to ensure that their safety features work. Unfortunately, the vehicles have been involved in a number of accidents (at least six in September alone).  One of those accidents (which happened in December) involved a motorcyclist, who has now filed a lawsuit claiming that he suffered personal injuries in an accident with one of the company’s self-driving cars, when a self-driving Chevrolet Bolt vehicle veered suddenly into his lane, knocking him to the ground.  You can read the complaint here.

As reported by AboutLawsuits here, the lawsuit comes amid a push for the deployment of self-driving vehicle regulations. New federal guidance, A Vision for Safety 2.0, was released by the U.S. Department of Transportation (DOT) and the NHTSA in September, providing recommendations for the automotive industry and States to follow while developing the evolving technologies used in self-driving vehicles.

For my most recent posts on issues related to driverless cars, go to "Update on the debate regarding possible liability for injuries caused by autonomous cars"  and "Podcast: Challenges of self driving cars."

US Supreme Court denies cert in ignition switch defects case

Last year, the Court of Appeals for the Second Circuit ruled against General Motors' argument that it could not be liable for damages caused by ignition-switch defects because the products were made before it formed a new company following Chapter 11 bankruptcy.  For more information on the case go here and scroll down.  This decision was appealed to the Supreme Court and this week it was reported that the Court has refused to hear the appeal.  Now, the currently pending claims against GM will move forward. The claims have been estimated to be worth between $7 billion and $10 billion.

Podcast: Challenges of self driving cars

The program Case in Point (Univ. of Pennsylvania Law School) has posted a new 20 minute podcast on "Challenges of Self-Driving Vehicles." 

Update on the debate regarding possible liability for injuries caused by autonomous cars

I have been following the debate regarding the development of so called "self driving cars" or "autonomous cars and the debate on the legal issues that will arise regarding liability for injuries caused by them.  My previous posts (with lots of links to more information) are here, here, here and here.

One of the more interesting questions that is being debated is whether a car should be programmed to kill its occupants if it means saving the lives of other people or whether government regulations should focus on a utilitarian model where the vehicle is programmed to prioritize the good of the overall public above the individual.

This philosophical question - usually referred to as the trolley car problem - has been the subject of discussion in philosophy classes and books for a long time.  (You can watch such a class at Harvard here).

Interestingly, however, Techdirt is reporting that according to some engineers, the trolley problem should not be an issue when it comes to autonomous cars.  Or, at least, not yet.  For now, engineers are concerned with more basic problems.  As the article concludes:

[The trolley questions is] still a question that needs asking, but with no obvious solution on the horizon, engineers appear to be focused on notably more mundane problems. For example one study suggests that while self-driving cars do get into twice the number of accidents of manually controlled vehicles, those accidents usually occur because the automated car was too careful -- and didn't bend the rules a little like a normal driver would (rear ended for being too cautious at a right on red, for example). As such, the current problem du jour isn't some fantastical scenario involving an on-board AI killing you to save a busload of crying toddlers, but how to get self-driving cars to drive more like the inconsistent, sometimes downright goofy, and error-prone human beings they hope to someday replace. 

You can read the article (and the comments posted below it) here. 

Court of Appeals for the 2nd Circuit holds GM can be liable for injuries caused before it filed for bankruptcy

Last year I wrote about the possibility that a large number of lawsuits filed against General Motors could be dismissed as a result of the fact that GM filed for bankruptcy in 2009.  To make a long story short, the issue was whether the “New GM” (after bankruptcy) would be responsible for the conduct of the “Old GM” (pre bankruptcy).  Go here for links to my older posts on this question. 

The issue is now back in the news because about 10 days ago, the Court of Appeals for the Second Circuit has decided that General Motors can't use its 2009 bankruptcy to fend off lawsuits over faulty and dangerous ignition switches exposes the automaker to billions in additional liabilities.  The Associated Press has the story here.   The Pop Tort has a comment on it here.

First fatality related to a self-driving car opens the door to litigation & policy discussion

I just updated my post on thoughts on issues related to possible liability for accidents involving automated or self-driving cars (see below).  The topic has been in the news lately because tragically a man driving a Tesla Model S in Florida recently became the first self-driving car fatality.  Apparently the car failed to distinguish the white side of a turning tractor trailer from the bright May sky and did not apply the brakes.

As you would expect, the story has generated a lot of attention.  Here are some links:

ABA Journal

The Guardian

TortsProf blog, citing CNN

NPR (4 minute podcast)

Torts Today

More thoughts on tort liability and autonomous vehicles -- UPDATED

A few days ago I posted a comment on issues related to the possibility of liability for accidents involving autonomous (aka "self driving") cars.  See here.  In it, I commented on the fact that because the possible liability would be shifted from the driver to the programmer, we would have to consider the decision making process that programmers would use to determine what a car should do when facing the possibility of an accident, particularly if it involved making a decision between choices that would cause different types of injuries to others.

I am revisiting the question today because of a new article in Slate precisely on that issue.  It talks about how programmers are studying "the ethics of so-called crash-optimization algorithms" which seek to enable a self-driving car to “choose” the course of action that would cause the least amount of harm or damage. However, as the article goes on to discuss, what happens when all the choices would result in damage? What happens when one result would cause little damage to the occupant of the car but would likely cause catastrophic damage to another? How should the car be programmed to react?  What is the reasonably prudent thing to do?  Is it to always protect the occupant, who after all, expects the car to offer safety?  Or should the car avoid the worst type of possible injury, even if it means causing injury to the occupant?  The possibilities are almost endless.

You can read the full article here.

Meanwhile, another article, also published in Slate (and available here), argues that "Congress may need to provide a certain amount of legal immunity for creators of driverless car technologies, or at least create an alternative legal compensation system for when things go wrong."

The article acknowledges that one possible approach to the issues raised by liability for injuries caused by autonomous vehicles is to allow courts to apply tort law rules, or to develop new ones, just as we have always done.  That way the law would develop to provide the necessary balance in the societal cost and benefit analysis.

Yet, the article rejects this approach and proposes federal government intervention and regulation instead using the regulation over vaccines as an analogy.  I think this reasoning is flawed.

First of all, what's wrong with allowing the law to develop as it always has through the common law process by applying, or modifying, principles of tort law?  Courts have forever considered the consequences of imposing liability and have either expanded or limited the reach of the possible liability based on many factors.  As the article states, "So, if the autonomous car maker of the future ends up putting a fleet of defective robot cars on the road that they knew had serious programming issues, courts would force them to pay for any resulting damages. As a result, those driverless car makers will need to invest in better insurance policies to protect against that risk."

Someone explain to me why that would be a bad thing.

The article then takes on the issue of whether there should be liability on companies who provide the cars as a "service."  The product liability approach would not apply in such cases because those possible defendants would not be in the market of selling products.  The article argues:

"the car of the future is more likely to be . . . a fleet of robot cars that are just sitting out there waiting for us to hail them for a ride. As cars become more of a service than a final good, liability will rapidly shift to the owner of the fleet of cars and away from end users. But if all the liability falls on the manufacturer or fleet owners of driverless cars, there’s one big pitfall with this approach. America’s legal system lacks a “loser-pays” rule—i.e., the party who loses the case covers the other party’s legal fees—which means a perverse incentive exists to file potentially frivolous lawsuits at the first sign of any trouble. If enough lawsuits start flying, it could seriously undermine this potentially unprecedented public health success story. That’s why it may be necessary to limit liability in some fashion to avoid the chilling effect that excessive litigation can have on life-enriching innovation"

There are many things wrong with this simplistic analysis.  Let's start with the claim that liability will "shift" to the owner of the fleet of cars and away from the end users.  First, this implies that liability can be imposed on the owner of the fleet just because it is the owner of the fleet.  This is wrong.  Since the owner of the fleet is providing a service, its liability would not be strict.  It could be vicarious liability based on the negligence of one of its employees, or it could be direct liability based on its own negligence.  But in either case, the liability would be based on negligence which would require the plaintiff to prove the conduct and that it should be considered to be negligent to begin with.  Providing a car, by itself is not negligent.  The plaintiff would have to argue that there is something in the process of providing the car or in the type of car that makes it negligent to provide it to the public.  And if that is the case, again, someone explain to me why it would be a bad thing to allow the court system to operate as a way to help make the products and the process safer.  This is how the history of tort law has worked to make cars and transportation in general safer over the years. 

Second, the article's assertion implies that liability is assigned either to the defendant or to the plaintiff.  In fact, in all but 4 or 5 jurisdictions in the United States liability can be, and often is, shared by the parties.  In most of those jurisdictions, the plaintiff can actually lose the right to recover if their portion of the blame is high enough.  This, of course, is what we know as comparative negligence (and in those 4 or 5 retrograde jurisdictions as contributory negligence).  Changing the analysis as to who can be liable has no effect on who would be liable, much less on the consequences of how the possible liability is allocated.

Having said, that, though, since the consumer of transportation in the article's car of future scenario does nothing other than get in the car, it might be difficult to argue their conduct was somehow negligent and that it contributed to the injury.  For this reason, the "shift" in possible liability is not caused by the legal analysis but by the technology itself which takes human error out of the equation.  If the person formerly known as the driver of the car has no control over the car, it can hardly be said they acted in a way that creates an unreasonable risk of injury to others, unless you argue that getting into an autonomous vehicle is, by itself, negligent. And who wants to argue that?

Third, the article's assertion seems to be based on the notion that all of a sudden there will be a massive increase in lawsuits, and frivolous lawsuits at that which will lead to dogs and cats living together and the end of the world as we know it.  Give me a break.  Anyone who knows anything about tort law knows that tort law claims are a small percentage of civil litigation.  New technology does not necessarily lead to more litigation.  And, even if it does, if more litigation leads to better safety, then more litigation is a good thing.

The article goes on to suggest that one potential model to solve the problem can be found in the National Childhood Vaccine Injury Act of 1986.   This is certainly a possible approach but it must not be forgotten that vaccines fall within a very distinct category of products: those that are unavoidably dangerous.  These are products that can not be made safer but whose social benefits outweigh the risks they create.  Should we be eager to pronounce that autonomous cars should be considered in this same category of products?  I am not.  Not yet, at least.  We haven't seen an autonomous car in the market yet, so why would we be so eager to say there is no way they can be made safer?  And if there is no way to avoid the dangers they create, I suggest what we should be doing is asking whether we are willing to tolerate the risks rather than say they should be rejected precisely because they are unavoidably unsafe.

The article concludes:  "Initially, the tort system should be allowed to run its course because it may be the case that the gains are so enormous that frivolous lawsuits are not even a cost factor. But if excessive litigation ensues over just a handful of incidents and begins discouraging more widespread adoption, Congress might need to consider an indemnification regime that ensures the technology is not discouraged but which also compensates the victims. Creating this system will have challenges of its own, but the life-saving benefits of driverless cars are well worth overcoming a few roadblocks"

I agree with the first part.  There are many issues to deal with as the industry continues to move forward with the notion of autonomous cars and we should let the tort system continue to develop.

UPDATE (7-11-16):  TechDirt has a short post on the ethical dilemmas that smart car programming presents.   It starts by framing the question this way:   "Should your car be programmed to kill you if it means saving the lives of dozens of other people? For example, should your automated vehicle be programmed to take your life in instances where on board computers realize the alternative is the death of dozens of bus-riding school children?"  Interestingly, it points out that "people often support the utilitarian "greater good" model -- unless it's their life that's at stake. A new joint study by the Toulouse School of Economics, the University of Oregon and MIT has found that while people generally praise the utilitarian model when asked, they'd be less likely to buy such an automated vehicle or support regulations mandating that automated vehicles (AVs) be programmed in such a fashion . . . To further clarify, the surveys found that if both types of vehicles were on the market, most people surveyed would prefer you drive the utilitarian vehicle, while they continue driving self-protective models. . ."

Thoughts on tort liability and autonomous vehicles

There is a growing amount of literature on possible issues related to tort liability and autonomous vehicles, aka self-driving cars.  If you search using those phrases in SSRN, for example you will find 10 to 20 articles. 

I have to confess I have not been keeping up with the literature but today I was reading an article in Smithsonian magazine (my favorite magazine, by the way) and found this quote by Chris Gerdes, who is described as “one of the leading engineers identifying novel problems facing autonomous driving and writing the code to solve them”:   “Autonomous vehicles don’t eliminate human error.  They shift it from the driver to the programmer.”

Obviously, this notion might prove to be extremely important in the future when someone has to decide whether to impose liability for injuries caused by an autonomous vehicle.

I also found interesting the description of how the programmer is working to identify and help solve the future problems: “Part of what Gerdes does is huddle with a team that includes not just engineers and programmers but also moral philosophers, and what has emerged is an ethical framework, or set of decision trees.”

The mention of moral philosophers, of course, made me think of the “trolley problem” (or here) which makes sense because this is the type of decision a programmer may have to find a solution to in order for the autonomous car to “act.”  

If you are not familiar with the “trolley problem” take a look at the first 13 minutes of this video.  Essentially, the question is whether you would act to switch a trolley from one track where it is headed to kill five people onto a track where it will kill one other person.  I would not want to be the computer programmer in charge of deciding this type of thing in order to tell a car what to do. 

And if you think the trolley problem is too far fetched, think of a more common problem.  How should the autonomous car react when a child darts in front of it?  Should it simply stop even though it senses there is a car behind which might hit it and hurt the passengers in it?  Should it veer to avoid the child but head to a collision into another car? And so on.  The possibilities are endless. 

Currently, we - humans - make those decisions based on reaction time and instinct and when injuries are caused, other humans pass value judgment on the conduct based on legal standards which depend on the circumstances. 

How would - or should - all of this change in cases of injuries caused by autonomous vehicles given that the responsibility for making decisions is transferred to a computer programmer?   Should the standard of care change to take into account the work of the programmer rather than the circumstances of the accident? 

Short podcast on driverless (self driving) cars

A few days ago I posted links to two stories on driverless, or self driving, cars.  See here.  Today, Bloomberg law posted a short podcasts on the same issues.  You can listen to the podcast here (16 minutes) or to a shorter version here (3 minutes).

American Museum of Tort Law, interview with Ralph Nader (video)

Earlier this year the American Museum of Tort Law opened its doors in Connecticut.  Here is a short introduction by Ralph Nader:

Two interesting stories about driverless, or self driving, cars

I have posted a couple of stories on possible legal issues related to driverless cars before (see here, for example).  So, to follow up on that, in case you haven't seen them, here are two interesting recent stories about issues related to driverless, or self driving, cars:

Self-Driving Cars Have Twice The Accidents, But Only Because Humans Aren't Used To Vehicles Following The Rules

The Ethical and Legal Dilemmas of Self-Driving Cars

Plaintiffs suing General Motors over faulty ignition switches can seek punitive damages despite GM's reorganization after bankruptcy

Back in May I wrote about the possibility that a large number of lawsuits filed against General Motors could be dismissed following a ruling blocking lawsuits filed against GM over actions that predate its 2009 bankruptcy, declaring that “New GM” and “Old GM” are two different companies and that the new company is not liable for the actions of the old one.  The back story on that is here, here and here.  But the Chicago Daily Law Bulletin is reporting now that "[a] federal bankruptcy judge has ruled that people suing General Motors over faulty ignition switches can seek punitive damages that could cost the company millions of dollars or more.  When General Motors emerged from a 2009 bankruptcy, it became known as “New GM.” The new company essentially was shielded from liabilities of the old company that was left behind.  But Judge Robert Gerber in New York ruled Monday that employees and knowledge transferred from the “Old GM” to the new company. Plaintiffs, he ruled, can seek punitive damages if they can show that “New GM” knew of the faulty switches but covered it up."

GM ignition switch defects tied to 124 deaths, 275 injuries

Attorney Kenneth Feinberg’s office has completed its review of all 4,000-plus compensation claims related to General Motors’ faulty ignition switches which prompted the recall of more than 2.6 million vehicles last year and the conclusion is that the defects have been linked to 124 deaths and 275 injuries.  Go here for the full story.

Thanks to Torts Today for the update.

GM Settlement Fund Offers $1 Million Each in 124 Ingition Switch Death Claims

Details here.

Fiat Chrysler Hit With Record $105 Million Fine For Safety Defects

Federal regulators are fining Fiat Chrysler $105 million for failing to acknowledge and address safety defects in a timely fashion. The civil penalty — the largest ever imposed by the National Highway Traffic Safety Administration — will be accompanied by three years of "unprecedented" federal oversight, the agency says.  Go here for more details.

G.M.’s Ignition Switch Death Toll Hits 100, but many claims may be dismissed because of the effect of the company's 2009 bankruptcy

The consequences of General Motors’ long-delayed recall of defective small cars hit a grim milestone recently, when the company’s compensation fund said it had approved the 100th death claim tied to faulty ignition switches. The toll far exceeds the 13 victims that G.M. had said last year were the only known fatalities linked to ignitions that could suddenly cut off engine power and disable airbags.  The New York Times has the full story here. However, a large number of lawsuits filed against GM may be dismissed following a recent bankruptcy court ruling blocking lawsuits filed against General Motors over actions that predate its 2009 bankruptcy, declaring that “New GM” and “Old GM” are two different companies and that the new company is not liable for the actions of the old one. AboutLawsuits has that story here.