Over the past decade, the concept of a mass-produced self-driving car became a reality. In fact, currently, several major auto manufacturers already have models in production that use autonomous driving technology, with many other manufacturers not far behind. However, by all accounts, the kinks still need to be worked out before the technology is generally regarded as safe. It seems as though every few months, there is another accident involving self-driving cars.

Autonomous driving technology, like any other broadly adopted new technology, will impact personal injury liability. As the technology is still relatively new, lawmakers have not yet addressed all the legal questions that widespread use of the technology raises. Thus, courts will be put in the position of coming up with ad hoc solutions to some very challenging legal issues.

While there are many legal issues surrounding the use of self-driving cars, certain issues stand out. For example, determining the circumstances under which the driver of a self-driving vehicle can be held accountable for an accident may be challenging. Additionally, apportioning liability to the auto manufacturers, or the creator of the software or algorithm, will also be a major concern.

For the most part, vehicles equipped with autonomous driving technology clearly state that the technology is not a substitute for the driver's full attention. However, this is counter to the very purpose of the technology, and manufacturers walk a thin line when advertising their vehicles' capabilities. For example, Tesla CEO Elon Musk has come under fire for releasing a video of himself driving a Tesla while not paying attention to the road. This can create confusion regarding the vehicle's warnings and the owner's manual and potentially reduce driver compliance. Indeed, a quick online search can yield dozens of videos showing Tesla owners driving while reading the newspaper, eating or drinking, looking away, or otherwise not paying attention to the road.

Part of the problem, according to some, is the terminology used to describe the technology. For instance, German lawmakers recently banned Tesla from using the term "autopilot" in any of its advertising in that country. The idea is that, by using the term "autopilot," drivers may overly rely on the technology, increasing the risk of a major accident. In his characteristic fashion, Musk responded that such criticism was "idiotic" and that "if something goes wrong with Autopilot, it's because someone is misusing it and using it directly contrary to how we've said it should be used."

On some level, Musk has a point. User error does – and will continue to – contribute to a large number of self-driving car accidents. And those who are injured due to a driver's failure to heed a vehicle's warnings will look to the driver of an autonomous vehicle for compensation following an accident. It is conceivable that the driver of an autonomous driving vehicle would claim that they did not breach a duty of care because they were operating the vehicle in reliance on statements or advertisements from the vehicle's manufacturer. However, confusion about the capabilities and efficacy of self-driving technology hardly seems a legitimate defense to a negligence action, especially while the technology is still new and not yet proven to be safe. Regardless, it is certain that courts will eventually have to wrestle with the issue of driver liability when it comes to self-driving car accidents.

The other obvious issue in accidents involving autonomous driving technology is the vehicle manufacturer's liability or the company that designed the self-driving technology. Not surprisingly, the drivers of many of the Tesla vehicles involved in accidents have blamed the vehicle's self-driving technology. For example, several years ago, a Tesla vehicle slammed into a semi-truck after the car failed to detect the side of the truck. Many other examples exist in which some aspect of the self-driving technology is alleged to have failed. Regardless, establishing a failure in the self-driving technology may be challenging and will likely require expert testimony.

Some vehicle manufacturers, such as Tesla, have proprietary technology. Ford, General Motors, and Baidu also have their own autonomous driving technology in the works. However, future makers of self-driving cars will likely incorporate third-party software. This may not make a difference in the liability determination, as, under a general product liability theory, the manufacturer would still likely be liable. However, it does introduce an interesting wrinkle in whether a manufacturer could seek contribution from the third-party developer.

Other interesting issues surrounding this developing practice area include:

  • Discovery issues: As vehicle manufacturers rely more on computer operations, this will necessarily result in an increase in discoverable information. Aside from the sheer volume of discovery, there may also be an issue relating to proprietary code.
  • Insurance issues: The traditional approach to insurance may prove unworkable if self-driving cars become extremely common. Some have questioned what will happen to the auto insurance industry if autonomous driving technology is able to reduce the rate of car accidents in the long-run.
  • Upcoming legislation: To be sure, the most effective way to deal with the new issues presented by self-driving technology is legislative action. However, traditionally, lawmakers act in response to an issue, rather than in advance of it. That said, there have already been some state lawmakers who have raised these issues in hopes of providing the courts with some clarity or direction. As of February 2020, 29 states have enacted some type of legislation pertaining to self-driving cars, including Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New York, Nevada, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Vermont, Washington and Wisconsin —and Washington D.C. This is up significantly from 2012, when only six states had legislation on the books regarding self-driving technology.

In addition, governors in the following states have issued executive orders related to autonomous vehicles: Arizona, Delaware, Hawaii, Idaho, Illinois, Maine, Massachusetts, Minnesota, Ohio, Washington, and Wisconsin.

Courts Will Be Tasked with Resolving Liability Issues Involving Autonomous Driving Technology

In the end, regardless of whether state lawmakers address the legal issues arising from autonomous vehicle accidents, courts will be responsible for either interpreting the new laws or devising the criteria to resolve the unaddressed issues as they arise. While it may take years for the cases to work their way through the court system, it is a near certainty that accidents involving self-driving cars will present courts, and personal injury attorneys, with many important novel legal issues.