A driverless car is driving itself down the street, when a man steps into a crosswalk. The car, unable to stop itself in time, must make a quick decision. Does it hit the pedestrian, or veer off of into other vehicles, potentially harming others? This would be a terrible and difficult choice for any human driver, but how could it be made by a machine?
Sounds like a dark situation, but it’s a very real scenario when you consider the daily dangers that self driving cars could face, especially in a city such as San Francisco. And, regardless of the choice, who would be at fault in that situation? The car? The driver? The pedestrian? Whoever developed the software?
Self-driving cars are making headlines across the nation, and giving legal minds and policy makers a lot to think about as more self-driving carsare involved in crashes with passenger injuries.
Bryant Walker Smith, a University of South Carolina law professor, has attempted to take this question head on, in a new study he conducted regarding the shift in blame for a crash and what party should really be at fault in a situation like the one described above.
“To prove that an automated driving system performed unreasonably, an injured plaintiff would likely need to show either that a human driver would have done better or that another, actual or theoretical, automated driving system would have done better,” Smith said.
Volvo, one of the many car makers looking to sell its self-driving cars nationwide, expects that the liability will shift, especially once these events become more common.
“It is really not that strange,” Anders Karrberg, vice president of government affairs at Volvo Car Corp., told a House subcommittee earlier this month. “Carmakers should take liability for any system in the car. So we have declared that if there is a malfunction to the [autonomous driving] system when operating autonomously, we would take the product liability.” Sounds easy to prove when you hear it from Volvo, but how high would the expense be to retain expert witnesses who could opine on the technical reasons for a failure. If each auto collision case with injuries became a product liability case, the costs of prosecuting these cases would deter the vast majority of claims. What is wrong with deterring claims? Well, despite what you might have heard, the majority of automobile collision claims involve clear liability on the part of a motorist. Most claims are settled, and our courts have a good system for resolving disputes and making negligent parties accountable. Imagine each case costing $100,000.00 in legal costs alone. The chilling effect on bringing a claim would be strong, and many, if not most persons injured in motor vehicle accidents would go uncompensated. Is that a system we really want? Where the mighty corporations can out spend anyone and everyone and thereby never be made accountable?
Although taking humans out of the equation when it comes to driving should reduce the number of collisions, it certainly won’t eliminate them completely.
“Those of us who have been in the software world know that software has bugs, so there’s no perfect solution,” said Ash Hassib, senior vice president for Auto and Home Insurance at LexisNexis Risk Solutions, which provides statistical data to the insurance industry. “There is so much brainpower that goes on when driving a car, so it will take a long time to teach a machine all the possible scenarios that could take place. Eighty percent of the scenarios will be quick, but trying to get to the last 20 percent is going to take a very long time.”
Whether you see self driving cars as a benefit or a concern, there is certainly a lot left for the car manufacturers, and the legal community to consider…as pointed out by Smith:
“The standard for reasonable safety is always increasing, and automated driving is no exception,” Smith said. “The technologies that will amaze us in the next few years could seem laughably — or dangerously — anachronistic a decade later.”
Claude A. Wyle is a partner of Choulos Choulos, and Wyle, a San Francisco based law firm dedicated to representing clients who have been injured by the wrongful conduct of individuals, corporations, public entities, and businesses. Mr. Wyle also frequently sits as a Judge Pro Tem for the city and county of San Francisco.