Motor vehicle design continues to make significant technological leaps incorporating a number of automated features, with many manufacturers pioneering the concept of driverless cars. What was once the stuff of science fiction is making significant headway towards full-scale production and commercialization. A recent study reveals that existing U.S. laws pose few barriers to adoption of autonomous vehicle technology – that is so long as manufacturers stick with traditional designs permitting human driver control override.

As is often the case with new technology, the pace of advancement has outpaced the U.S. government’s ability to fully regulate driverless technology. In order to sell a motor vehicle in the U.S. market, a vehicle manufacturer must certify that the vehicle meets the performance requirements specified in the Federal Motor Safety Standards, or FMVSS (see 49 U.S.C. 30115). Unfortunately, the FMVSS was initially drafted in 1966 and was developed with the assumption that vehicles subject to this regulation would be driven by a human driver. Understanding the need to revise the FMVSS to address the imminent commercialization of driverless cars, the U.S. Department of Transportation commissioned a study by the John A. Volpe National Transportation Systems Center (Volpe Center).

The focus of this study was to highlight standards in the current FMVSS that may create certification challenges for automated vehicle concepts. The Volpe team conducted two separate reviews of the FMVSS: one identified instances in the FMVSS where a “driver” was referenced, and the second review looked to identify current language in the FMVSS that could pose direct challenges to a range of automated vehicle concepts.

The Volpe Center released its findings of these two reviews in its initial report in March, 2016. The Volpe team found 33 references to a human driver, and further concluded that none of these “driver” references precluded certifying a vehicle with automated capabilities so long as the vehicle design enabled a human to operate the vehicle with a wheel and pedals. The report did however note that how the term “driver” could be interpreted could become less clear as highly automated vehicles take over driving functions.

In its review of the FMVSS for automated vehicle concepts, the Volpe team concluded that automated vehicle concepts that include alternative cabin layouts and omit human controls would face numerous challenges under the current FMVSS. However, the Volpe Center’s report revealed only a few standards that present these challenges for certification so long as the vehicle did not significantly differ from conventional vehicle design. The two areas identified as posing challenges for certification of automated vehicles with conventional designs were in the area of theft protection, rollaway prevention and light vehicle braking systems.

In response, NHTSA is planning pilot programs across the country to test vehicles, working with states on developing new model laws and evaluating federal regulations for what changes may be required to address, among other things, functional and safety requirements. In the meantime, Tesla Motors Inc.’s chief executive officer, billionaire Elon Musk, says it’s technically feasible that its electric cars will be capable of driving autonomously across the U.S. within two to three years. Google Inc. operates perhaps the best-known fleet of self-driving cars, and Apple Inc. is presumed to be working on its own models. In fact, in late April, Ford Motor Company and Google joined to lead a coalition of companies, including Volvo and others, that advocate for federal approval of driverless cars in the near future. The group, called the “Self-Driving Coalition for Safer Streets”, presented testimony at a recent hearing in California on autonomous vehicles held by the National Highway Traffic Safety Administration. The hearing was the second conducted by the federal agency as it tries to develop national guidelines for the use of autonomous cars on American roadways. The Obama administration has expressed its support for expediting regulatory guidelines and for the investment necessary to bring autonomous vehicles to market. Ultimately, the Volpe study reveals a regulatory pathway to commercialization for those companies already in the driverless car game, and others looking to join the automated vehicle revolution.

What will all this mean for product liability? The answer is that while the fact pattern may be slightly different from those we see in the transportation industry today, the same issues – negligence, design, manufacturing, warnings and warranty – are likely to continue to be the focus of litigation in the future. Consider, for example, an autonomous steering technology that works well during the day but that tends to cause fender-benders when used at night. A person whose car is damaged as a result could assert that night driving is a reasonably foreseeable use of a vehicle, and that the manufacturer’s failure to ensure the technology worked effectively at night constitutes negligence. Design defects are another commonly asserted theory of liability. Suppose a plaintiff claims that the software for controlling braking in an autonomous vehicle doesn’t sufficiently increase braking power when the vehicle needs to stop on a downhill slope, resulting in a frontal collision. The person who suffers injuries or economic losses due to the collision could file a design-defects claim against the manufacturer. Even if the design is sound, plaintiffs may still file claims for manufacturing defect or breach of warranty. For example, what if a manufacturer advertised that a car could “parallel park itself, day or night”. If the system only works properly during the day, and only in wide open spaces, a purchaser could try to file a claim for breach of warranty.

What we expect to change here is the regulatory landscape governing the vehicle manufacturing industry. Meanwhile, because product liability law is highly adaptive to new technology, with the help of industry experts and adept product counsel, it should be capable of adapting to the emerging new vehicle technologies as well.