Self-driving cars and autonomous vehicles
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Panasonic Corp's SPACe_L autonomous car concept is displayed at the Tokyo Motor Show on October 24, 2019. Advances in selling self-driving cars to the broader consumer market are being held back by liability issues. Photo: Kyodo

Self-driving cars pose crucial question: who to blame in a crash

  • Who is liable when a fully self-driving car hits another vehicle or a pedestrian remains a complex question for both carmakers and tech firms
  • Despite the intense debate over legal issues, self-driving cars have the potential to drastically reduce the number of car crashes and deaths on roads
A debate over who to blame – or sue – when a self-driving car hits someone is holding up legislation the industry says it needs to advance.

“If another driver hits you, it’s clear who the driver is,” said Sarah Rooney, senior director of federal and regulatory affairs for the American Association for Justice. “It’s the human being.”

Not so when a fully self-driving car hits another vehicle or a pedestrian. Then the fault may lie with the manufacturer and the software, or with the owner if updates have not been properly installed. If the manufacturer is as fault, a victim may seek to sue under product liability standards, as with a conventional car.

The vehicles are still in the beta stage, but the issues have held up legislation that would allow carmakers to test and sell tens of thousands of autonomous vehicles – something the industry has said it needs to fully develop and eventually market the technology to consumers. A bill to do that sailed through the US House of Representatives several years ago, but has been bogged down in the Senate over the liability question.
US National Transportation Safety Board investigators examine a self-driving Uber Technologies vehicle involved in a fatal accident in Tempe, Arizona, on March 20, 2018. Photo: Reuters

A move to merge the bill with must-pass legislation earlier this month faltered over an initiative by some manufacturers to include language that would prevent consumers from suing or forming class-action cases. Instead, the consumers would have to submit disputes to binding arbitration, something that is common with technology products but not automobiles.

That idea faced resistance from safety groups and trial lawyers, who are influential among Senate Democrats. The measure was pulled on the eve of a committee vote and supporters say they are still working to address the liability issue in the hopes of moving the legislation forward this year.

A handful of crashes involving Tesla vehicles with human drivers using the company’s Autopilot system, as well as the death of a pedestrian struck by an Uber Technologies self-driving test car in 2018, has focused attention on the issue of liability on vehicles now under development that have no steering wheels, gas pedals or other accommodation for human drivers.

Rooney, representing a group of trial lawyers who oppose limits on lawsuits, said liability issues will have to be worked out before any legislation authorising the use of more automated vehicles on US roads should proceed.

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A group of 15 consumer advocacy groups including Rooney’s association wrote a letter on May 17 to leaders on the House Energy and Commerce’s consumer protection subcommittee opposing mandatory arbitration. They expressed concern that automated vehicles may someday be operated by Uber or other companies and come with clauses to their terms of service.

“Unless legislation prevents manufacturers from doing so, they will insert extremely broad forced arbitration clauses into their contracts, blocking consumers from meaningful remedies if they are hurt or their privacy violated,” the letter read. “Even pedestrians’ claims could be kept out of court.”

South Dakota Republican Senator John Thune has proposed legislation calling for the National Highway Traffic Safety Administration to exempt as many as 15,000 self-driving vehicles per manufacturer from human-driving safety standards.

The number would rise to 80,000 within three years. Currently, a carmaker can produce 2,500 of the vehicles for testing.


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“Providing the automotive industry with the tools they need to safely test and deploy automated vehicles across the nation will create thousands of jobs and generate billions of dollars in investment,” Thune, who is a member of the Senate Commerce, Science and Transportation Committee, said in a statement.

The measure does not address the arbitration issue, something Thune said should be considered separately. But opponents of the measure fear granting the exemptions, before liability issues are worked out, will give carmakers carte blanche to put thousands of self-driving cars on the road before the legal rules are set.

Jason Levine, executive director of the Centre for Auto Safety, said the threat of litigation has served consumers as an important check on car manufacturers for decades.

“Too often the most effective counterweight to vehicle defects and manufacturers prioritising profits over safety has not been the federal government, but instead has been the threat of litigation by crash victims,” he said.

The issue is even more important with the advent of self-driving car technology, according to Levine.

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“Consumers are right to wonder who will be held responsible for the defective computer code which operates a motor vehicle they are in when it kills or maims another human being,” Levine said. “Who will be held responsible for preventable tragedies, whether it a passenger, or vehicle owner, or the manufacturer, or an individual software engineer will be determined by choices made by Congress.”

Rooney said the friction about liability comes as self-driving cars are attracting interest from technology companies that do not have long histories in the car industry. Traditional carmakers know “if you manufacture a faulty ignition switch, you’re going to be held accountable”, she said.

“The tech companies that are interested in getting into the space have been allowed to use forced arbitration at will,” she said. “They do not want to get rid of it. If this was traditional auto manufacturers, this debate would probably be over and there would be a bill.”

An autonomous vehicle of Waymo, the self-driving unit of Google parent Alphabet, is seen cruising on a street in Silicon Valley. Photo: Shutterstock

Self-driving car supporters have argued that existing tort law contains principles for allocating fault and apportioning liability among parties.

“Decades of motor vehicle law have been applied to countless new technologies in the past and have already been applied to AVs,” said Ariel Wolf, general counsel to the Self-Driving Coalition, which represents companies such as Ford Motor Co, Uber, Lyft and Waymo.

Missy Cummings, director of Duke University’s Humans and Autonomy Lab, said Congress should not rush to add new regulations for self-driving cars – or reduce them – while the technology is still in development.

“I think the experimental exemptions that we have are fine,” she said.

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Many carmakers have quietly backed off pronouncements made in the middle of the last decade that would have resulted in many more self-driving cars being on the road, according to Cummings.

“Without explicitly saying it, a lot of companies are realising that self-driving cars are much further off than we initially realised,” she said.

Despite the intense debate over legal issues, self-driving cars have the potential to drastically reduce the number of car crashes and deaths on US roads.

“With an estimated 36,000 lives lost on US roads last year, autonomous vehicles offer a transformative opportunity to save lives, unlock new economic and mobility opportunities, and promote American leadership and innovation,” Wolf, counsel of the Self-Driving Coalition, said.