The legal landscape applicable to autonomous vehicles is unsettled and constantly changing, but several states have embraced a new wave of autonomous vehicle legislation that has the potential to reshape the approach to liability in automotive accidents. Bills under consideration in Illinois and Massachusetts would have those states join Michigan in recognizing autonomous vehicle hardware and software as a “driver,” specifically for purposes of complying with traffic and safety laws. A host of ambiguities likely will result, but this type of legislation could result in an entirely new brand of product liability plaintiff.

States Inch Toward Viewing Autonomous Vehicles as “Drivers”

With vehicle features as ubiquitous as adaptive cruise control or self-parking, state legislators and regulators have already been forced to consider the issue of who incurs liability when a vehicle that is under the partial control of a computer contributes to a collision. As autonomous vehicle technology advances further to the point where driving tasks are no longer shared between human and machine, but are exclusively controlled by integrated hardware and software, new rules and regulations will be needed. When a vehicle is behind its own wheel, who assumes liability for speeding tickets? For avoidable crashes? Plaintiffs’ attorneys will certainly argue that any perceived error by an autonomous vehicle’s driving system resulted from a product defect.

Early rounds of state autonomous vehicle legislation largely avoided the core issue, instead resolving peripheral matters. New York, Florida, and the District of Columbia, for example, insulated vehicle manufacturers from product liability claims arising out of a third party’s conversion of a traditional vehicle into an autonomous one. Numerous state legislatures have passed laws permitting vehicle manufacturers to test their vehicles on public roads without expressly addressing liability issues that might result.

But in late 2016, Michigan took the first tentative step into the heart of the matter, by adopting legislation allowing the general public to use fully autonomous vehicles – but simultaneously providing that the automated system “shall be considered the driver or operator of a vehicle for purposes of determining conformance to any applicable traffic or motor vehicle laws.” This concept has gained momentum in 2017, with the Illinois and Massachusetts legislatures considering similar language. Even further, Illinois’ proposed statute expressly states that existing product liability law will be preserved.

Ambiguous Liability Issues Remain

Legislation like Michigan’s and Illinois’ could signal that liability for accidents traditionally attributed to the “driver” may pass to the manufacturer. An entirely new class of product liability plaintiff may emerge, whereby any accident involving an autonomous vehicle and a traffic violation is claimed to arise from a product defect.

Traffic violations that would ordinarily be attributed to the vehicle’s driver – speeding, failure to maintain an assured clear distance, and so forth – might instead be attributed to the vehicle’s driving system and, by extension, the manufacturer. Taken to its extreme, because traffic laws are geared toward ensuring drivers avoid accidents, nearly any accident involving an autonomous vehicle and an arguable traffic law violation by the autonomous “driver” could give rise to a product liability claim against a vehicle manufacturer, component part manufacturer, or supplier.

Though well-intentioned, state laws like Michigan’s leave a host of open questions for regulators and courts to resolve. Certainly, the plaintiff’s bar will argue that this breed of legislation portends a wholesale transfer of liability from the human driver to the vehicle manufacturer, component part manufacturer, or supplier. With vehicle manufacturers continuing to progress toward fully autonomous vehicles – those classified as “Level 4” or higher under NHTSA’s classification scheme – the issue will only become more pressing.