Legal Considerations for Driverless Vehicles
May 01, 2017

Lisa Berardi Marflak
Transportation Research Board

The following is a series of excerpts from a Transportation Research Board (TRB) report, A Look at the Legal Environment for Driverless Vehicles.

For more information on the legal considerations of driverless vehicles, register for the TRB Webinar A Look at the Legal Environment for Driverless Vehicles scheduled for May 3.

Sometime within the next decade, driverless vehicles will join conventional vehicles, which are operated by human drivers, on the roads of the United States. How many people will decide to forego human driving for driverless vehicles is a matter of wide speculation. Many drivers will likely stay with conventional cars for a time. After all, given advancing technology, in the near future conventional vehicles will be highly automated, capable of limited selfdriving, partially autonomous, and probably connected.

Nevertheless, even if driverless vehicles are adopted only gradually and partially, their introduction onto roadways still will have numerous legal ramifications. How soon and how smoothly driverless vehicles merge onto U.S. roads and highways will depend, in part, on how the legal system resolves the many legal issues implicated by these vehicles. Driverless vehicles will inherit a framework of laws designed for conventional vehicles. Some states already have begun to make minor modifications to this framework to account for the unique capabilities and concerns associated with driverless vehicles. In the future, these intersections of the law and driverless technologies will grow increasingly numerous and complicated ...

For as long as they have been imagined, driverless vehicles have been perceived as a panacea to the safety hazards associated with their human-operated counterparts. Yet even if driverless vehicles are safer than other methods of transportation, they will still get into accidents. When this happens, questions will arise regarding who should have to bear the costs of these accidents.

There exists a well-established body of law that prescribes the legal liabilities of manufacturers and operators of conventional automobiles when these devices injure people or property … These civil liability projections involve substantial speculation. It is far from certain that the laws of tomorrow will be the same as those of today. Also, driverless technologies (or the market for these devices) may or may not evolve in the manner presently forecast. These and other contingencies make it difficult to pinpoint how liability rules and driverless vehicles will intersect.

Nevertheless ... certain patterns tend to recur when new technologies lead to perceived risks of personal injuries. These trends, as mapped against the current law and the anticipated trajectory of driverless vehicles’ development and diffusion, afford a basis for probabilistic, as opposed to definite, forecasts ...

The types of personal injury cases associated with driverless vehicles likely will evolve over time. Claims that allege user negligence will predominate at first, but eventually will fall off substantially as driverless vehicles and their users both grow more common and competent. These claims against users will be replaced, to a degree, by claims that allege defects in driverless vehicles (the “upward” shift spoken of by other commentators), although these claims will not be as common as negligence lawsuits brought against drivers are today, due to the enhanced safety profile of these devices …

… as primary responsibility for decision making while driving shifts from human drivers to driverless vehicles, the principal repository of liability for everyday traffic accidents correspondingly will drift away from individual vehicle operators and toward product manufacturers. Automobile-accident plaintiffs in the future presumably will rely increasingly on the strict-liability theories of recovery that are available against defendants involved in the supply chain for products, instead of the negligence principles that apply to human drivers.

Over time, driverless vehicles may lead to changes in generic products liability doctrine, although the precise direction of these adjustments is difficult to anticipate. Eventually, driverless vehicles likely will result in a significant reduction in the total number of lawsuits involving the operation of motor vehicles. Negligence claims against users may remain somewhat more prevalent and persistent than what some observers presently predict, and unless a transformative change in law occurs, at least some lawsuits against manufacturers will persist. Yet the anticipated overall decline in personal injury litigation associated with automobiles may have important consequences for a substantial segment of the bar for whom these matters represent a significant share of their case portfolios.

These prospects all lie far in the future. Presently, the main issue before policymakers concerns whether to avoid this anticipated gradual change through the near-term enactment of statutes or promulgation of regulations that preempt or otherwise limit tort lawsuits associated with driverless vehicles. If conventional vehicles provide any guide, some preemption of tort liability vis-à-vis basic safety features and certain programming choices is probably inevitable in the long run.

But the information required for the adoption of sound, longterm regulatory standards has not yet been generated, and broad preemption has not yet been necessary for innovation to occur in this field. Furthermore, the incremental and ongoing development of automated and driverless vehicle technologies militates against premature regulatory strategies — of any stripe — that may be overbroad or off the mark, and prove difficult to amend at a later date.

Finally, policymakers should appreciate that the civil liability law that comes to surround driverless vehicles will itself serve as a foundation for principles later extended to other applications of artificial intelligence, if and when these technologies begin to cause harm. To date, software has not left a particularly large footprint on tort law, primarily because software programming decisions rarely have led to personal injuries.

That will change once driverless vehicles become common. It will change even more if and when robots and other products involving sophisticated artificial intelligence become more prevalent and useful. The tort law that coalesces around driverless vehicles will represent the opening chapter of a longer narrative in which our society decides where and how to address and account for risks associated with these devices.

Lisa Berardi Marflak is Director, Communications/Media, for the Transportation Research Board.