By Mark Pratzel on March 9, 2017

car GPSAs autonomous automobile vehicle (AV) technology develops new legal issues and challenges continue to appear. An issue that has led to much debate is the potential impact of lawsuits, which some contend could hamper the growth of AV technology.

While increased AV use is expected to decrease the incidence of motor vehicle accidents, they will inevitably continue. When they occur, how will liability be allocated between the vehicle manufacturer, the software designer, and the human operator?  Concern has been expressed by the industry that if the manufacturer is the primary party held liable for accidents, it could seriously undermine the development of driverless vehicle technology, and thereby, impede the decrease of motor vehicle accidents.  As a result, a number of schemes have been discussed in an effort to avoid such a result.  These plans include “alternative immunity schemes,” which would allow the automobile industry to self-regulate, grant manufacturers immunity from suit, and establish federal preemption of state laws.

Proponents of such immunity point to a similar model that was implemented in the Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to 300aa-34, which shielded vaccine creators from liability to ensure they would continue to produce life-saving drugs. In return for this immunity, the Childhood Vaccine Act established a compensation fund for children suffering harm from vaccines.   This model, its proponents argue, would encourage manufacturers to continue developing potentially beneficial and life-saving technology which otherwise might be stifled by the burden of litigation and liability exposure.

Opponents of immunity for manufacturers contend that the courts serve as the best arbiters on liability issues. The American Association for Justice, a national plaintiffs bar organization, issued a report [1] outlining potential safety gaps associated with the development of AVs.  The AAJ report acknowledges that this technology will likely reduce the risk of automobile accidents. However, it recommends that the judicial system, rather than regulators, legislators, or the automobile industry itself, should have primary responsibility for determining AV safety requirements and establishing liability arising from AV accidents and injuries.  “Attempts to circumvent accountability, through reform proposals that grant corporations immunity,” the AAJ argues, “will eliminate incentives to make vehicles safe, and almost certainly result in more lives lost.”

While immunity for manufacturers will be the subject of vigorous debate, the concept illustrates one of the new and as yet unexplored legal challenges that this new technology will present for the automotive industry and the insurance industry, and for politics and society generally—as the development of automobiles did a century ago.

[1] American Association for Justice, “Driven to Safety: Robot Cars and the Future of Liability”, February 2017