-Will autonomous vehicles disrupt personal injury practice?
This is the second article of a series on the changes that the advance of self-driving cars are predicted to bring about to the automotive industry and related businesses. To read how autonomous vehicles are predicted to change the insurance industry, please read the previous article.
Ultimately safer, though accidents happen
When it was disclosed last year that a Tesla Model S car driving in the Autopilot mode was involved in a fatal crash, the question on everyone’s mind was: “Can the Tesla Motors company be held liable for the accident?”. Enthusiasts of autonomous driving technology likely held their breath when the National Highway Traffic Safety Administration, NHTSA, announced that it was opening a preliminary evaluation into the performance of the Autopilot to establish whether it could have been responsible for the crash. Indeed, the stakes were high and possible ramifications for the future of self-driving cars may have seemed daunting. If this incident was going to be brought before a court of law, it would become a first impression issue – a court case without any existing precedent that would set precedent for future cases. If it were established that the Autopilot system had, indeed, caused the crash, public perception of AI vehicles would likely be dramatically influenced and could potentially contribute to a considerable slowdown in the advancement and proliferation of the technology.
The NHTSA investigation lasted for 8 months and in the end, it was determined that the Autopilot mode was not responsible for the crash due to any software malfunction or design fault. The Tesla vehicles with an Autopilot system were not to be recalled, and no other legal ramifications were going to result from the incident. The Tesla company and Elon Musk, its CEO, could heave a sigh of relief, along with other enthusiasts of autonomous driving technology.
For now, the Tesla fatal crash remains an isolated incident. There have been other collisions involving self-driving cars run by Google and Uber, but with no serious injuries or damage. Google autonomous vehicles boast a rather impressive record of having completed almost 2 million miles since the project was initiated, with only 14 minor collisions, such as rear-end crashes, out of which the Google car’s software was responsible for only one. In fact, if autonomous cars become widespread on US roads, the number of accidents could drop by 90%, according to one report. Nevertheless, a universal adoption of driverless vehicles would not eliminate accidents completely. In a world where robot cars are the norm, some of the crashes will be caused by bad decisions made by computer software. In turn, these kinds of situations will call for completely new paradigms in personal injury law. The present article, the second in the series on the impact of the advance of autonomous vehicles, analyzes what may change with regard to fault and liability issues once AI cars truly hit the roads.
Car-crash personal injury claims today
To understand how personal injury cases related to car crashes may change in the future, we first need to be aware of how such cases proceed today. A personal injury claim starts with an injury, damage, or a loss, most likely caused by a person’s negligence. For example, a car was rear-ended by another vehicle whose driver exhibited negligence by failing to exercise sufficient caution; or a car was t-boned by another car that did not yield the right of way. In both of those cases the negligent driver was clearly at fault and thus the injured party asks the at-fault party to take the responsibility for the damage. The at-fault party should then contact its insurance company to check if the damage is covered by the policy they own and what the cash limit of a potential claim is. Usually, the insurance company will investigate the extent of the damage and offer the injured party a cash settlement. The injured party has the right to accept or refuse the offer. In the case of a refusal and a failure to achieve any other settlement, the injured party may ask their personal injury attorney to evaluate the case. If the attorney thinks the claim has merit, they may speak on behalf of the injured party to the insurance company. If further attempts to renegotiate the claim with the insurance company prove ineffective, the case will most likely be settled in the court of law.
How may this process change with a wide adoption of autonomous vehicles? The central issue in most personal injury cases today is negligence liability. The at-fault driver is liable for the damage or injury because they displayed negligence – a failure to act with the sufficient level of care. But who will be found negligent, and thus liable, in an accident where there was no human driver? The automaker? The software company? The manufacturers of various subcomponents that allow the car to drive in autonomous mode, such as cameras, ultrasonic detectors, or lidars? There is no easy answer to that question. As one lawyer has put it: “You’re going to get a whole host of new defendants. Computer programmers, computer companies, designers of algorithms, Google, mapping companies, even states. It’s going to be very fertile ground for lawyers”. In any case, it is very likely that the process of proving fault after an accident may become much more complicated than it is now, especially because under the current law, in personal injury claims, there is little room for blaming the manufacturer of the car. If a driver wants to do that, they need to prove the negligence on the part of the automaker under the product-liability law. As we hinted in the previous articles in this series, however, product-liability does not stipulate for driverless cars yet. As David Strickland, former head of NHTSA, noted: “There’s going to have to be some changes to the laws. There is no such thing right now that says the manufacturer of the automated system is financially responsible for crashes”.
Self-driving car manufacturers are already hinting at their approach to liability in crashes involving autonomous vehicles. Google, Mercedes, and Volvo have declared that they will accept full liability whenever one of their cars driving in autonomous mode is involved in a crash, although some attorneys dismiss such claims as marketing ploys. On the other hand, Elon Musk, Tesla’s CEO, has said that the company will not be responsible for such accidents unless caused by a fault “endemic to our [Tesla’s] design”. Musk compared the issue of liability in an AV crash to an elevator accident. “Does the Otis [an elevator manufacturer] take responsibility for all elevators around the world, no they don’t”, he noted. In the case of an elevator accident that results in a personal injury claim, it is possible that a company responsible for elevator maintenance or the property owner will be found liable. Now, autonomous cars’ software rely on external visual indicators such as lane markings, traffic lights, or road signs while making some traffic-related decisions. If those indicators are not clearly visible and an AV causes a crash, it might just as well end up in a negligence claim against, say, municipality for a failure to exercise sufficient care for the state of local roads.
Can personal injury practice come out unscathed?
The problems and examples mentioned above clearly show the need for new laws and regulations. Although NHTSA has already released self-driving car guidelines, the individual states still need to develop uniform policies for autonomous vehicles, and many unsolved issues will probably find their answers in the course of specific cases settled in the courts once the AVs become the norm. The change, however, is inevitable. Therefore, the question is, will personal injury lawyers find themselves out of business with the advance of driverless cars? According to one specialist, “personal injury attorneys would see car-related cases all but disappear”. One attorney even advised law school graduates not to choose personal injury as the field they plan to practice because autonomous vehicles will “eviscerate a significant portion of the personal injury bar”. Nevertheless, attorneys deal with many different types of personal injury claims, so the drop in motor vehicle crash-related claims may not be as devastating for attorneys as it can be for the car insurance industry. Moreover, as some attorneys point out, it will not be the first time that legal practice changes and the practitioners will most likely adapt to yet another shift.
As we mentioned in the previous article, autonomous vehicles can be regarded as an example of disruptive technology, with considerable, even paradigm-shifting, impact on the automotive industry and many related industries. Insurance companies will likely see a huge decrease in profits as premiums get lower due to fewer accidents. Similarly, personal injury practice will change with the issue of negligence liability possibly shifting from individuals to manufacturers or other third-parties. It is nearly impossible to foresee all of the complex consequences the advance of self-driving cars will bring about. In this shifting, unpredictable ground, one thing is certain – the change is underway. There is only one thing the various industries and business set to be influenced by that change can do – brace for impact.