There’s no doubt that accidents involving autonomous vehicles will put challenging new liability questions before the courts. But that doesn’t mean the courts will be unable to address them. And it doesn’t mean that we have to put the autonomous-vehicle industry on hold so legislators can attempt to preemptively draft and enact an entirely new set of liability laws that anticipate everything that might go wrong. It’s an exercise that would be as impossible as it is unnecessary.
Why? Because we already have a legal framework that is basically up to the task, as I recently argued in detail in a Brookings Institution paper. Thanks largely to the tremendous technological change that has occurred since the middle of the last century, products liability has been a dynamic, rapidly evolving area of law. Notably, when confronted with new, often complex, questions involving products liability, courts have generally gotten things right.
Today’s products liability law is the result of decades—or more, if you take the longer view—of precedent that has established the responsibilities that accompany making and selling products. Plaintiffs in products-liability lawsuits can choose from among various (not mutually exclusive) “theories” of liability when seeking to recover damages.
Negligence occurs when manufacturers fail to design their products to be safe when used in reasonably foreseeable ways. Consider an autonomous steering technology that works well during the day but that tends to cause fender-benders when used at night. A person whose car is damaged as a result could assert that night driving is a reasonably foreseeable use of a vehicle, and that the manufacturer’s failure to ensure the technology worked effectively at night constitutes negligence.
Design defects are another commonly asserted theory of liability. Suppose that the software for controlling braking in an autonomous vehicle doesn’t sufficiently increase braking power when the vehicle needs to stop on a downhill slope. If, as a result, a vehicle causes a frontal collision (i.e., impacts a car in front of it), a person who suffers injuries or economic losses due to the collision could file a design-defects claim against the manufacturer.
Even when a design is sound, manufacturers can be liable for manufacturing defects. If an autonomous vehicle technology provider accidentally ships some vehicles with an early, non-market-ready version of software containing a flaw not present in the newer version that was supposed to have been shipped, a person injured in an accident attributable to this flaw could seek to recover damages from the technology provider.
Because the process of marketing and selling a product creates explicit and implicit warranties, products liability also involves contract law. Consider a provider of automated parallel parking solutions that claims in advertisements that the system can “parallel park in tight spaces equally well whether it’s day or night.” If, instead, the system only works during the day, and only in spaces that aren’t particularly tight, a purchaser of such a system could file a products liability claim citing breach of warranty (and would likely also allege that there was a design defect).