Uncertain Liability

"Will lawsuits kill the autonomous car?" That's a dramatic expression of a common question. (And one to which Twitter has a short retort.) Here’s the conceptual answer that I’ve been giving for a year, now in blog form (with bonus Italics):


Vehicle automation technologies have the potential to reduce crash and injury rates, improve the effectiveness of recalls and safety improvement campaigns, and increase the information available to investigators and litigators. These developments, should they manifest themselves, could eventually reduce and rationalize the liability and litigation costs that are collectively incurred—and ultimately passed on to consumers—by automakers, suppliers, service providers, insurers, and other automotive actors.

At the same time, shifting more driving decisions from reactive human drivers to proactive human designers may mean that a greater share of crash-related costs (in a broad sense) pass through automotive manufacturers on their way to consumers. Managing this risk may in turn require and inspire innovative business models, particularly with respect to insurance.

Because risk that is difficult to predict is also difficult to price and allocate, these models may be impeded by significant uncertainty about both the performance of relevant technologies and the eventual response of judges, juries, regulators, consumers, and the public at large to incidents that will inevitably occur. If this uncertainty motivates delays or higher prices for technologies that actually do improve safety, the cost will ultimately be measured in lives lost.


In other words, the standard query about liability is largely one about uncertainty: What don't we know? Can we know it? If so, how?

Product liability researchers have been trying to answer these multidisciplinary questions for at least 20 years:

  • Stephen N. Roberts, Alison S. Hightower, Michael G. Thornton, Linda N. Cunningham, and Richard G. Terry, Advanced Vehicle Control Systems: Potential Tort Liability for Developers, FHWA Contract DTFH61-93-C-00087 (Dec. 1, 1993)
  • Nidhi Kalra, James Anderson, Martin Wachs (RAND Corporation), Liability and Regulation of Autonomous Vehicle Technologies, California PATH Research Report, UCB-ITS-PRR-2009-28, 6-8 (April 2009)
  • Tom M. Gasser, Clemens Arzt, Mihiar Ayoubi, Arne Bartels, Jana Eier, Frank Flemisch, Dirk Häcker, Tobias Hesse, Werner Huber, Christine Lotz, Markus Maurer, Simone Ruth-Schumacher, Jürgen Schwarz, and Wolfgang Vogt, Rechtsfolgen zunehmender Fahrzeugautomatisierung, BASt-Bericht F 83 (Jan. 1, 2012)
  • Andrew P. Garza, “Look Ma, No Hands!”: Wrinkles and Wrecks in the Age of Autonomous Vehicles, 46 New Eng. L. Rev. 581 (2012)
  • Bryant Walker Smith, Automated Vehicles Are Probably Legal in the United States, Center for Internet and Society Paper Series (Nov. 1, 2012)
  • Kyle Graham, Of Frightened Horses and Autonomous Vehicles: Tort Law and Its Assimilation of Innovations, 52 Santa Clara L. Rev. 1241 (2012)
  • Gary E. Marchant and Rachel A. Lindor, The Coming Collision Between Autonomous Vehicles and the Liability System, 52 Santa Clara L. Rev. 1321 (2012)

UPDATE: You can download a working draft of Bryant Walker Smith, Proximity-Driven Liability, 102 Georgetown L.J. (forthcoming 2014), here.

My current research (of which this early paper is one part) approaches product liability as a function of connectivity. And two promising legal breakout sessions at the Transportation Research Board’s upcoming Workshop on Road Vehicle Automation—one on risk, liability, and insurance and another on data ownership, protection, access, and discovery—will help scholars and practitioners alike figure out what we've all been missing.

Photo Credit: Creativity103

Add new comment