The anticipated impact of autonomous vehicles on driver safety cannot be overstated. According to federal data, roughly 37,000 people died and another 2.7 million were injured in car accidents in the United States in 2017 alone.1
The United States Department of Transportation estimates that 94% of crashes involve driver-related factors, such as impaired driving, speeding or illegal maneuvers.2 These striking numbers are a driving force behind the enthusiasm for autonomous vehicles, which are expected to substantially diminish or eliminate accidents caused by human error.
Such a shift would not only improve safety, but also transform the litigation landscape. Most obviously, a substantial reduction in accidents would likely produce a correspondingly substantial reduction in accident-related litigation. But commentators have suggested that the character of the remaining litigation would also likely shift.
If human factors are largely eliminated from car accidents, the supposition has been that liability for accidents would shift almost entirely to car manufacturers, removing or severely restricting the availability of comparative fault defenses.3 Indeed, a number of automobile manufacturers have previously stated that they would assume liability for accidents involving self-driving technology in their automobiles, while also noting that the anticipated liability for such accidents is likely to be very small or nonexistent, due to the safety improvements that the technology is expected to confer.4
This approach also appears to reflect the assumption of potential regulators of autonomous vehicles. For example, in a white paper authored this month by the Governors Highway Safety Association — which is a nonprofit group that represents state highway safety offices — a panel of experts commissioned by the association noted that while some have suggested that owners could remain liable for autonomous vehicles involved in accidents, "[o]thers have suggested that the [autonomous vehicle's] manufacturer [would] be responsible under product liability law."5
In reality, such statements — while broadly correct, in noting that autonomous driving technology is likely to alter the shape of litigation — likely oversimplify things significantly. Already, what little litigation there has been over alleged defects in autonomous driving technology has involved allegations of fault by human parties to the accidents at issue, a trend that is likely to continue at least during the likely long transition period during which autonomous, semi-autonomous and nonautonomous vehicles coexist.6
Moreover, even assuming there is a shift away from driver liability, it is not clear that liability will shift entirely to automobile manufacturers — especially in light of the trend toward outsourcing the multiple necessary components for an autonomous driving system to a diverse array of third-party vendors. Computerization of the driving function also opens potentially new frontiers for liability that were previously confined to other fields — such as hacking, which traditionally has threatened informational rather than physical harm.
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