Virginia may not be a state many people associate with autonomous technology, but it has quickly become an attractive locale for developers of this technology. Several autonomous technology companies have recently seen great advancements in the implementation of their technology in Virginia. WING, for example, a sister company of Google, recently celebrated its first successful aviation delivery of commercial products in Christiansburg, Virginia. The company, which has partnered with Walgreens and FedEx, uses drones to deliver packages to the community. Aurora Flight Sciences, an independent subsidiary of Boeing, similarly completed its first test flight of its autonomous passenger air vehicle prototype in Manassas, Virginia earlier this year. In addition, San Francisco based LM Industries deployed a self-driving vehicle, Ollie, at Fort Myer-Henderson Hall in Arlington earlier this year, and Optimus Ride, a Boston-based self-driving tech company, has deployed autonomous shuttles in Reston, where more than 15,000 rides have already been completed.

One of Virginia’s strategies to attract autonomous technology companies has been to avoid overregulation of the industry. Indeed, the only current statute that regulates autonomous vehicles in Virginia is HBG 454, which allows operators of autonomous vehicles to view visual displays while the vehicle is under autonomous operation. This is in stark contrast to states that impose multiple requirements on autonomous vehicle companies. In California, for example, the Department of Motor Vehicles has issued extensive regulations regarding the use and testing of autonomous vehicles. Under these regulations, operators of autonomous vehicles must meet specific requirements and go through a DMV-administered application process. In addition, a manufacturer who identifies a safety-related defect in its autonomous technology that creates an “unreasonable risk” to safety must submit a report to the DMV.

Effective safety standards can help support a defense in product liability matters by showing that a company’s actions were reasonable based on industry-wide standards and government approval. Indiana, for example, applies a presumption against defect where the product “complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States or by Indiana, or by the agency” of either. I.C.A. §34-20-5-1. In other jurisdictions, compliance with safety standards can be used to support a state-of-the-art defense.

Without industry-wide standards, the public will be free to determine what is reasonable with regard to autonomous technology. Consequently, the public may impose unreasonably high expectations on the technology and, as a result, the manufacturers of it. For example, consumers may expect that, without the human error component, autonomous vehicles should be able to avoid all accidents. Similarly, consumers who lack understanding of the various automation levels may also confuse the features and abilities of their level 2 automated vehicle with those of a level 4 automated vehicle.

Shaping consumer expectations is important because one of the standards used in several states to determine whether a product is defective is the consumer expectation test. Under the consumer expectations test, a product is defective if it fails to perform as safely as an ordinary consumer would expect. This standard can be difficult to meet, even apart from autonomous technology, because consumers often have false beliefs about the capabilities of the safety features in their vehicles. Safety standards, and consumer education, can play a pivotal role in shaping consumer expectations and laying the groundwork for defending future product liability actions involving autonomous vehicles.