What about the state? Could Arizona be held accountable for allowing autonomous cars to roam public streets without sufficient oversight, including legal guidance for inevitable situations like pedestrian deaths? Smith doubts it. “In general, states are not liable for policy determinations. A state might be liable for not properly maintaining a road, but not for deciding whether or not to build the road.”
Still, since the law is set by precedents pursued by legal action, other interpretations of self-driving liability are possible. A different interpretation might compare operating autonomous test cars to taking dangerous or experimental equipment on city roads. There’s an argument to be made that a pedestrian death at the hands of an autonomous car, even one that would have been unavoidable, is no different from a human-driven car with a new, experimental combustion engine that malfunctions and blows up on a city road or interstate.
Meanwhile, the letter of the Arizona executive order seems to suggest that the human operator is on the hook for any traffic infractions while he or she is in the vehicle, even if it’s in fully autonomous mode. That means that an operator could, in theory, be charged with vehicular manslaughter—although the courts would inevitably have to adjudicate such a matter were the state to bring the charge. The whole situation is muddy and confused, and it might be impossible to understand it in the abstract, before legal precedent is set.
Furthermore, since the autonomous Ubers can and do, at times, pick up ordinary Uber passengers during their transit of Tempe’s streets, their autonomous vehicles might also be subject to the common carrier doctrine—a law that requires common carriers, like buses and taxis, but also hoteliers, insurers, and others (including, more recently, internet-service providers) to be held to a higher standard of care than ordinary operators. But there’s confusion about what a “higher standard of care” means— the Arizona Supreme Court has even held that common carriers in the state are only subject to “reasonable” care anyway, the same as any other agent. Worse, it’s not clear if ride-hail services even count as common carriers in Arizona or elsewhere.
Ducey’s executive order was written to encourage self-driving technology and manufacturing companies to move jobs and commerce to the state. As such, it sacrifices some of Arizona’s citizens’ rights to safety in the present in exchange for economic development, and the possibility of safer roads in the future, when and if autonomous cars become ubiquitous.
That said, an executive order doesn’t really do very much. The governor can direct the state and its agencies to do things, but statutory laws are made by the legislature—the regulation of self-driving vehicles in Arizona can’t really go beyond existing law anyway. Ducey is taking the implicit position that existing law is consistent with automated driving. Should the Hertzberg collision, or another situation, result in litigation, then the interpretation of the law can proceed as usual. “Tragedies have a way of bringing legal issues to a head,” Smith concludes.