By: Elliot Min

Ever since the gasoline shortages and soaring oil prices during the 1973 Arab Oil Embargo, many automakers have been exploring options for alternative fuel vehicles, including electric vehicles. Unfortunately, it took almost 30 years after the Arab Oil Embargo until technological innovations in electric and hybrid electric vehicles made it so that these vehicles could be a legitimate alternative to their gasoline counterparts. Technological innovations in electric vehicles have not only made it so that they rival their gasoline counterparts, but they also offer unique services and options that gasoline vehicles don’t have the capability of. For example, the significantly stronger battery packs in electric vehicles provide a stable power source that is necessary for the numerous complex sensors and computer systems used for autonomous driving.  

Alongside these technological advances came complex legal issues as these autonomous driving services began to create scenarios and situations in unchartered territory. As technology keeps moving forward at a breakneck pace, the law has struggled to match, especially with its heavy reliance on precedent. A huge legal issue arose: “who holds liability when an autonomous vehicle is involved in an accident?” 

Who is currently liable?

Currently, no case law definitively places liability at the feet of the automobile companies, the individual(s) using the self-driving technology, or the individual(s) not using the technology. Instead, the contemporary legal system is very analytical and fact specific. Though this may appear to be an equitable method it is not realistically sustainable.  With the rise of the number and complexity of these lawsuits, there needs to be a more solidified standard that courts can uniformly rely on. The problem intensifies when considering that the accident rate of self-driving cars is more than two times higher than in human-driven vehicles (though the severity of injuries is much lower than in human-driven vehicles). 

The National Highway Traffic Safety Administration has recently announced that it will be updating the regulations on self-driving vehicles so that they won’t need traditional controls like steering wheels or pedals. This change is immensely significant for the legal evolution of transportation and motor vehicle safety standards. Though no fully automatic vehicles are currently being industrially produced for the public, colossal corporations such as Google, Apple, and Tesla are all pushing to launch fully self-driving electric cars shortly. In addition to these influential companies entering the autonomic vehicle product market, the United States Department of Energy is incentivizing residents to purchase all-electric and plug-in hybrid vehicles. The Biden administration also secured a Bipartisan Infrastructure Law which is investing over 14 billion dollars in expanding electric vehicle charging infrastructures and critical minerals supply chains (which are necessary for batteries, components, materials, and recycling). 

Who should be liable?

The unfortunate reality is that it is inevitable that accidents will continue to happen on the road. Even with academic experts predicting that there will eventually be an extinction of human-driven vehicles on the road, accidents will continue until then (and potentially even after).  

Though the United States Department of Transportation has issued a series of guidelines for automakers, they have purposely left a bunch of autonomy to individual state courts to determine the liability of any accidents that involve autonomous vehicles. The Washington State Legislature has not considered any solidified policies regarding autonomous vehicles, but rather has created the Washington State Transportation Commission. This commission gathers information and develops policy recommendations for the Legislature to prepare for the operation of autonomous vehicles on public roadways across the state. 

There is precedent to show that the courts will look into each accident and analyze the facts to determine what directly or indirectly caused an accident. Was it a defect in the code or the product? Was it the mistake of the human driver? Was it a combination of factors that led to the accident that an average human driver could have avoided? These are just a few of the complex questions that the courts will have to answer before placing liability. Especially considering that this is the genesis of the autonomous vehicle law, the courts will have to be careful about where they place liability and how much liability (since it will serve as a landmark precedent for future cases). It could serve as a huge deterrent for individuals and corporations to innovate if the courts continue to place the bulk of the financial liability on the autonomous vehicle producers. On the other hand, consumers may be hesitant to purchase these vehicles if they view them as coming with a high legal risk (which could also influence the willingness of market competitors to enter this market).

Why does this matter?

These lawsuits will be extremely expensive as autonomous driving systems involve millions of lines of source code, the lives of every individual that uses public roads, and the corporate powerhouses that are willing and able to join the autonomous vehicle marketplace. These outcomes could also lead to expensive vehicle recalls which are common in defective automobiles because of their high safety concerns. Punitive damages can also come into play as the United States has allowed for punitive damages for outrageous conduct in the designing and/or manufacturing of a defective product. The future will likely be dominated by autonomous vehicles. The contemporary courts and legislature working in this field will be the original sculptors of the legislation that may become extremely important in the future.