Real World Implications of Driverless Vehicles

J. Bradley Klepper
Attorney at Law

It feels like any magazine you pick up or newspaper you read contains at least one article about driverless cars/trucks and autonomous vehicles (collectively “AVs”) and how they will create a utopian society where all of the problems associated with our roads and highways are gone.
Some of the key selling points about AVs is that they will reduce congestion, prevent fatalities, improve safety and allow people to use their time for more important matters than driving. This sounds great and is something most everyone can support. However, what the magazines, newspapers and tech gurus often fail to address is the real world impact AV’s will have on trucking and the automotive industry/culture in general.

There are three main areas in which AVs will have a profound impact: liability, traffic enforcement and safety.

I. Liability
In my opinion, one of the most interesting issues about AVs involves liability for accidents. In other words, who is going to pay when an AV crashes?

To fully understand the issues with liability we must distinguish between the two types of AVs we are likely to encounter. The fully automated AV which likely will not have a steering wheel and the AV which requires a “driver” to babysit and take over in certain situations. In the latter case when a driver is operating a vehicle and it is involved in an accident the driver/carrier will be responsible for any liability – just like today. But what about when the car or truck is operating without any human input and is involved in an accident? Currently the law generally states that the owner/operator of the vehicle will be liable for damage caused by the operation of the vehicle. However, should this still apply if the vehicle is operating without human input? The common sense answer would be no.

Because neither the states nor the federal government have a legal framework in place that addresses who would be responsible in an accident involving a fully autonomous vehicle, some of the leading players in the field have publicly announced policies on the matter. Specifically, Google, Volvo and Mercedes Benz have stepped forward and said they would accept liability when their cars are at fault (No word if this position would apply to future commercial vehicles made by Volvo or Mercedes Benz or commercial vehicles running Google software). I applaud these parties for stepping up to the plate; however, the lawyer in me questions how this would work in practice. It seems that the first thing that would be required is for these parties to determine “IF” their vehicle is at fault. In addition, even if the manufacturers truly want to accept liability I am reluctant to think they will immediately rush out to write a check. That just does not seem like a good business model.

Based on the existing laws in most states the responsibility will initially reside with the owner/operator of the vehicle. With that being said, what will likely happen in the event of an accident is that a lawsuit will be filed against the driver/owner/carrier. In turn, that party will have to implead the manufacturer into the action (an impleader is a fancy legal term for a process that allows the defendant to bring another party into the action who may be liable to the defendant). If the manufacturer agrees that they may be liable everything will go relatively smoothly; however, this will not always be the case. In fact, since accidents involving commercial vehicles normally have a high “price tag” manufacturers may be more hesitant to just step up and write a check.

In the event that the manufacturer denies liability, the owner/operator/carrier can sue the manufacturer under a theory of products liability. In essence, the owner/operator/carrier will try to show that the accident arose from the manufacturer’s negligence, a design defect, manufacturing defect, failure to warn about an issue or breach of implied warranty. Interestingly, this could open up a whole new group of defendants as the manufacturer may want to go after the computer programmers, computer companies, designers of the algorithms, mapping companies, etc. responsible for the software. Needless to say, the plaintiff’s bar is probably fairly excited over this possibility.

In addition to the scenario noted above, several states have no-fault liability laws. This means that in non-serious accidents (as defined by each state’s statute) each party’s own insurance will pay the injured party regardless of fault. Will the manufacturers still be willing to write a check in a no-fault state regardless of whether their vehicle was at fault? That is an interesting question and one which will likely only be answered in practice.

Another question regarding AVs is the impact they will have on insurance. Please note that there will always be a need for insurance to cover unforeseen events such as theft, damage from severe weather, the proverbial tree falling over on your car/commercial vehicle. However, what about liability coverage? If the manufacturers truly will provide coverage when their AV is involved in an accident does that mean that individuals and carriers will no longer need to carry liability insurance? If so, insurance costs could drop significantly. If this is the case, will carriers become self-insured for the scenario where the manufacturer denies coverage? Will legislation need to be put in place to determine the amount of money each carrier sets aside to cover such claims should it be determined the manufacturer is not at fault?

As you can see there are a lot of questions involving liability and insurance coverage for AVs that will need to be addressed before we travel much further down this road. When commercial autonomous vehicles hit the roads it is likely they will initially require a driver to “babysit” in case something happens; however, the technology will inevitably develop until that need no longer exists

II. Traffic Enforcement
One of the key selling points of AVs is that they will obey ALL traffic laws ALL the time! This is great and would definitely make our roads and highways much safer. However, if an AV never violates a traffic law what will happen to all the enforcement personnel on the roads today? I understand that we are a long way from a day where the roads are full of AV vehicles, but if the tech gurus are to be believed that day is coming. Sooner rather than later.

In a world where all the vehicles obey all the traffic laws all the time there will be no need for officers to patrol the streets looking for speeders and other scofflaws. As a result, what will happen to all the personnel currently assigned to traffic enforcement? In an ideal situation, these personnel could be re-assigned to work on other, more pressing, matters. However, not every situation will be ideal. I anticipate in states with budget issues these folks may be laid off.

Moreover, when the normal traffic stop is no longer necessary what will happen to the revenue received from fines for speeding and the like? If officers are not stopping vehicles and writing speeding tickets – nobody will be paying them. Since a portion of the fines currently collected go to pay for prosecutorial efforts, law enforcement training and safety programs and other expenses – where will the funding for these programs be found? Will prosecutorial efforts be reduced? Will enforcement training be reduced? Will folks be laid off? This cannot possibly have a positive impact on crime reduction. I do not have a crystal ball and can’t predict the future; however, I anticipate something will have to be done to address this lost revenue. Perhaps a tax similar to the “gas guzzler” tax will be applied to the sale of the AV. Maybe the money is held by the state and distributed to the municipalities as needed (seems like a great way for the money to be used by the States for other things). Maybe it will go straight to the county in which the car will be “domiciled.” I have no idea but something will have to be done to make up for this lost revenue.

Another thing to consider with the elimination of the normal traffic stop is the impact this will have police investigative work in general. Traffic stops arising from violation of a state’s vehicle code such as running red lights, broken taillight, etc. have led to many arrests and breakthroughs in criminal cases. Just think of how many people have been arrested for smuggling drugs, or firearms as a result a traffic stop. If an AV is incapable of violating any traffic law at any time there will be no grounds to make a stop. What if the AV is “unmanned” and just being used to deliver drugs? In states that require probable cause to pull someone over this could have a catastrophic impact on criminal investigations. Of course you could pull the vehicle over if you knew it was carrying drugs – but how often will that really occur. Will the laws have to be modified to allow officers to “randomly” stop vehicles? Again, I do not know the answer to this question but it will need to be addressed.

Finally, if fully autonomous vehicles (commercial or otherwise) can never violate the law doesn’t that make certain traffic laws unnecessary? What about DUI laws? Open container laws? Sure AVs could put an end to DUIs; however, doesn’t an argument exist for elimination of open container laws. If I am not driving a vehicle, and have no means to ever assume control of the vehicle, shouldn’t I be able to enjoy a glass of wine or a beer while I am being transported to a restaurant for dinner. Or maybe a beer on my way home from the bar. Maybe if I live in Colorado I could smoke marijuana on my way. After all, if I can’t drive the vehicle I will not be placing anyone in danger.

As you can see there are lots of questions arising from the impact of AVs on traffic laws, lost revenue and enforcement. I am not sure what the answer is to all of the issues; however, it does appear that AVs will drastically change enforcement efforts and criminal investigations.

III. Safety
As I mentioned earlier, one of the biggest selling points is that AVs will ultimately make our roads safer. Nobody argues that fact. In fact, data suggests that 90% of all accidents that occur are the result of human error. The ability to eliminate that many accidents would save countless lives and AVs provide a means for us to reach that goal. However, the road to this occurring is potentially bumpy.

Imagine you are travelling behind an autonomous commercial vehicle. You both enter an on ramp in Denver where the highway speed is 55 mph. However traffic on the highway is congested and travelling at 70 mph. The truck accelerates as best it can to try to merge with oncoming traffic – but never exceeds 55 mph. As a result of the congestion and high rate of speed of the other vehicles the truck slows (or eventually stops) while its computer waits for the cars with drivers to allow it to enter or a gap its software determines is big enough to safely allow it to merge. Unfortunately, drivers on the road today often don’t yield to trucks and I don’t see that changing. In this scenario the truck may eventually stop, blocking traffic behind it and creating both congestion and a driving hazard. Alternatively, the truck decides to try and merge – counting on the other vehicles to brake. What additional risk would sudden braking to allow the truck to merge create on the highway? How about if a similar scenario took place on a round-a-bout? How would you address these scenarios?

Some in the industry are attempting to modify the software to drive more aggressively without breaking the law. Quicker acceleration. Later braking points. All with the intent to make the cars drive more like humans – which seems to be what we were originally trying to avoid. Others wonder if it would make sense to allow AVs to break certain laws at certain times. Perhaps exceeding the speed limit in order to merge on a fast moving congested highway. Are there any moral issues associated with creating an AV that can break the law? What if the passenger was able to distinguish between a normal driving mode and an aggressive driving mode? If a person switched to aggressive mode and an accident occurred would that act factor into a determination of liability. Since that person knew that the change would allow the car to break the law it seems like it would have an impact.

How about this scenario. Two cars are parked on the side of a busy highway. A truck is passing the vehicles when suddenly a small child steps into the path of the truck from between the two cars without the truck having sufficient time to brake. What should happen? Should the truck swerve into oncoming traffic and sacrifice the life of those aboard (if any) and potentially the lives of the drivers of the other vehicles or should it take the life of the child. Which life is more important? What if it was a dog that ran out from between the cars? Does that matter? Who gets to make these decisions – the person writing the software? What if you don’t agree with the programmer’s decision? Should you have the right to override the software and create your own settings regarding these scenarios?

Of course the industry is aware of these issues and understands the moral and ethical dilemmas each present. How the manufacturers will address these issues and the amount of freedom that will be given to the owner of the AV to determine their own settings is anybody’s guess. At its base it is a philosophical question and I do not pretend to know the answer.

IV. Conclusion
As I sit here and review what I have said about autonomous vehicles I am afraid that I may have come across as a bit of a curmudgeon. Please understand that is not the case. I believe that autonomous vehicles will make world better by the reducing congestion, saving lives and putting an end to things such as DUIs. I also believe that they are coming sooner than we think. In fact, I anticipate getting in an autonomous taxi or “Uber” vehicle sometime in the next decade (just a hunch on my part). However, with that being said I do not think it is all rainbows and kittens. There are real world issues that will arise with adoption of AVs. Liability issues, legal issues, enforcement issues as well as philosophical questions regarding safety and decision making and I think it is time we start to think about them.

J. Bradley Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers.Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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