Another Year Closer to Autonomous Vehicles, Another Year With Inadequate Law To Guide Development

Human drivers get a reprieve for another year at least

It’s only been about a month since ringing in the start of 2018 and we’re yet another another step closer to one of the most significant technological shifts in recent history and a past favorite topic of discussion – i.e. autonomous vehicles. Let’s be clear about one thing, though: 2018 is not the year of the autonomous vehicle. A Tesla car slamming into a parked fire truck at full speed is plenty of evidence of that. Turns out, the dark little secret about current autonomous technology is that the cars basically ignore all non-moving objects because the systems are so limited that they can’t meaningfully distinguish between, say, a bright red stop sign and a bright red fire truck in the middle of the road. To put this in perspective, while my phone is smart enough to be able to distinguish between my face and my dad’s face, the top-of-the-line, $100,000+ autonomous vehicles can’t tell the difference between a rubber tire and a car and so, in order to function, has to assume everything stationary is a tire. Score one for human drivers.

And yet, the technology marches on as it should. The first autonomous semi by Tesla finally made its debut, nearly every car maker on the planet – even the most reluctant, driver-centric companies like Mazda – has announced plans for fully autonomous vehicles within the next 5-10 years, phrases like “Level 5 autonomy” have escaped from the pages of science fiction novels into the real-world and apply to real-world technology, and, perhaps most telling of all, autonomous driving was even the subject of discussion at a recent family reunion by a family that is, shall we say, not particularly on the cutting edge of technology in most cases. So while we’re not all the way there yet, we’re embracing the time-honored human tradition of racing to implement technology first, thinking about the consequences later. In fact, if you happen to be in Phoenix, AZ anytime soon, word is that Google (technically Waymo) will be testing a fleet of fully autonomous (no humans at all in the driver’s seat) vehicles in the area any day now.

Drunk driver, sober car

In previous posts it’s been discussed that the legal system is simply not ready for autonomous vehicles, which brings us to the subject of discussion today. About a week ago a driver was stopped and arrested for driving under the influence – well, technically he was so drunk that he was passed out in his vehicle, but I digress. His defense? He wasn’t driving, his car was driving itself because autonomous mode had been engaged. Notwithstanding the idiocy of this, due to the simple fact that there are no fully autonomous vehicles at this time and so his car was, legally speaking, not capable of driving itself, it raises an important question for the future: when (not if) vehicles are fully autonomous, who is responsible when something goes wrong? Let’s say he actually was in a fully autonomous vehicle, would he still be “driving” under the influence or just under the influence with his car “at fault” for being stopped in the middle of the freeway? Put more generally, what is the line between products liability (the car’s fault) and driver negligence (the person’s fault)? Can a driver reasonably trust in the functioning of the car’s autonomous systems or is there a duty to detect problems and intervene?

Exploding cell phones and the autonomous car

Perhaps the best guidance comes in view of the tragic history of the Samsung Note 7 (the name of one of Samsung’s smartphones, if you were wondering). In case you were under a rock hidden under another rock last year, the short version is that Samsung’s Note 7 had a disturbing tendency to catch fire and explode. As you might expect, the general public reaction, due to things like an aversion to catching on fire or being pelted with burning smartphone bits, was to strongly object to having the Samsung Note 7 anywhere near them like, say, on an airplane or anywhere in the general vicinity. The point being that smartphones, as ubiquitous as they are, are not 100% reliable or safe.

So now let’s say that you’re out and about with smartphone in hand, standing in line for lunch, when your smartphone suddenly catches fire and explodes, injuring the people around you. Is it your fault or is it the fault of the smartphone manufacturer? The reasonable answer, I think, is that – unless you had a Samsung Note 7 in the middle of that debacle – it’s not your fault because there’s no reasonable expectation that your smartphone is going to turn out to be an explosive device. So it seems like we should be able to rely on a fully autonomous system from BMW or Mercedes that has been researched and vetted to be safe and reliable. The problem being that phones have been around for almost 150 years with a minimal amount of exploding, whereas fully autonomous vehicles will be a brand new technology when they hit the market. One would hope that the subjective unease that may be associated with a groundbreaking technology would not be allowed to subvert objective standards of reasonableness. Unfortunately, if history is any indicator, this is a distinction that the courts will be forced to make when confronted with the issue because the legislature will not have fully addressed this question and courts have not always made the progressive decision.

All we can do now is be glad that the law has a few years to sort itself out and hope that the future members of the judiciary and legislature have the foresight and wisdom to adapt to the many radical disruptions to the legal landscape that will be created when autonomous vehicles take over the world finally hit the road.

TLDR: No matter how fancy the name of your car’s semi-autonomous system may be, your car can’t drive itself yet. But someday it will and the discussion needs to start now about how the law will adapt to the tremendous changes that will come about because of autonomous vehicles.

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If you’re involved in a lawsuit or risk management and have any questions regarding current or potential legal issues, we would urge you to contact an attorney as soon as possible to obtain advice, guidance and representation. At Baker, Keener & Nahra, we have the experience, skill, and drive to get the best possible results for our clients, no matter the size of the case or the scope of the problem. So if we can be of any assistance to you, please contact us and let us know how we can help.