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How Do You Sue a Self-Driving Car?

Litigation Finance Journal, October 5, 2017

By: John Freund

In May 2016, Joshua Brown was driving – or more accurately, “operating” – a Tesla Model S, when his vehicle struck a Semi and Brown was killed. Brown wasn’t technically “driving” because his Tesla was set to autonomous mode, meaning the vehicle was driving itself.

Brown’s death and his family’s impending lawsuit bring up a host of questions surrounding blame in accidents caused by self-driving cars. Who gets sued in these scenarios? The manufacturer? The tire company? The software maker? The drivers who touched “Agree” on their startup screens?

As Car and Driver reports, automation seems destined to shift the blame of road accidents from drivers to carmakers or equipment manufacturers, which means that our current legal framework of product liability must adapt to the new technology.

Fortunately tort law has a lengthy track record of addressing the complex interactions between humans and machines. Proponents of letting courts sort out the legal complexities argue that self-driving cars are essentially no different from previous technological advancements. Yet concerns that corporate liability fears may delay the introduction of life-saving driverless technologies have prompted alternative theories of liability which preempt the tort system.

In Brown’s case, his attorney could argue that Tesla was negligent in its design of a system that did not shut itself off after repeated warnings to the driver were ignored (by Brown himself), or that Tesla misrepresented the capabilities of the Autopilot feature, or even that Tesla should be held strictly liable, meaning that the inherent danger of its Autopilot system automatically implicates the company.

Those types of arguments are pushing tort reform advocates to promote solutions like Federal safety standards for autonomous vehicles, which will shield manufacturers from liability. Other proposals include no-fault insurance or an accident compensation fund.

It will no doubt be a bumpy road from here to there – wherever ‘there’ ends up being. Here’s hoping our legal system keeps both hands on the wheel, as opposed to letting the car drive itself.