Part 1: State Tort Law Could Impede The Development of Autonomous Vehicles

The automotive industry is in the early stages of a technological revolution. Sensors and software are gradually replacing human drivers. Eventually, autonomous vehicles will enhance vehicular safety and expand human mobility.

Before these benefits can be fully realized, however, substantial work remains to be done. Manufacturers are exploring different approaches to automation and it is not yet clear which automated systems hold the most promise. Consequently, despite the considerable progress already made, years of engineering and testing lie ahead.

Technological success and public acceptance will depend on a thorough examination of the various alternatives. It is only through the study of different systems under a wide array of actual operating conditions that the relevant stakeholders—manufacturers, regulators, insurers, and the driving public—can acquire the data needed to ensure the development and deployment of autonomous vehicles that are safe, secure, and marketable. This will require a legal environment that, at least during the transitional period, allows robust experimentation under real-world conditions.

The threat of state-law tort claims could impede the development of autonomous vehicles. If, for example, an individual injured in a specific way could hold a manufacturer liable for failure to install a particular device or failure to employ a particular algorithm despite the manufacturer's adoption of an alternative approach that reduced the aggregate but not specific risk of injury, the incentive for manufacturers to invest in the development and testing of such safety-enhancing alternatives would be diminished.

Fortunately, the National Highway Traffic Safety Administration (NHTSA), the federal agency responsible for regulating automotive design, has announced that it is considering a regulatory strategy that could minimize the extent to which state-law tort claims interfere with the development of autonomous vehicles.

In October, NHTSA published an Advance Notice of Proposed Rulemaking (ANPR) in which it declared that it is considering the establishment of a research program that would gather data to inform the agency's development of safety standards appropriate for light-duty autonomous vehicles. See Pilot Program for Collaborative Research on Motor Vehicles With High or Full Driving Automation, 83 Fed. Reg. 50872 (Oct. 10, 2018). NHTSA explained that it wants to obtain data, "including data generated in real-world scenarios," regarding the "new and developing technologies in their various iterations and configurations" so that the agency, manufacturers, and others can "gain practical, real world experience to determine the best approaches to enhancing safety."

As explained in Part 2 of this article, the ANPR lays the groundwork for the preemption of state-law tort claims that could interfere with the development of autonomous vehicles. The ANPR makes clear that allowing manufacturers to test different automated systems on the nation's roadways would assist NHTSA in "developing the data necessary to support such future [safety] standards as may be needed." In squarely assigning a federal regulatory purpose to the design discretion that automotive manufacturers would enjoy during the contemplated study period, NHTSA has set the stage for the implied preemption of state-law tort claims under Geier v. American Honda Motor Co., 529 U.S. 861 (2000), the seminal Supreme Court decision in the area.

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Originally published by Bloomberg Law .

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