DTCI: Legal questions abound for hands-free driving

Although fully autonomous cars will take years to reach the general public, several car manufacturers already sell or have plans within the next year to begin selling cars with hands-free driving features. Cars that self-park, change lanes, and navigate through rush hour traffic can currently be bought at dealerships, but laws and regulations regarding their use are practically nonexistent. The future of driving may already be pulling into your neighbor’s driveway, creating legal and liability issues that have not yet been addressed by courts or lawmakers.

Absence of regulations or laws

Many people assume self-driving cars are still years away from hitting the roads, allowing plenty of time for the driving public to adapt and legislatures to create regulations governing this new driving. BMW, Mercedes-Benz, Infiniti, Volvo and other car manufacturers already sell cars that allow some degree of hands-free driving – from parallel parking to high-speed interstate lane changing. Tesla’s Model S currently offers an autopilot feature that will “automatically drive [the] Model S on the open road and in rush hour traffic.”

Are these cars really legal in the U.S.? In the absence of any law or regulation specifically prohibiting them, the answer is yes. No federal laws and very few state laws prohibit autonomous driving, leaving it largely up to car manufacturers to decide when public use begins.

The New York Times reported that the vast majority of states have no laws covering hands-free driving. Only New York specifically requires drivers to keep one hand on the wheel while driving. It is true that legislators in California, Nevada and Florida have proposed regulations for autonomous cars, but few regulations are in place anywhere in the United States. The National Highway Traffic Safety Administration is conducting a study to develop recommendations for new state laws but has issued only guidelines that states may consider when drafting their laws.

Similarly, Indiana has no laws directly regulating autonomous driving, and this author could find nothing currently being considered by the Legislature. Last year, Governor Mike Pence recommended changes to Indiana law be considered to allow driverless cars once the technology is refined, but it appears nothing has materialized.

Liability for car accidents

In this absence of regulation, liability for car accidents could shift from negligence claims against drivers toward product liability claims against car manufacturers or software engineers. New liability questions will soon arise as cars become partially hands-free but not fully autonomous. A driver who had a chance to intervene, but was too busy looking at his phone, could still share some liability even if the car failed to operate as advertised.

As long as a driver has not given up full control and retains some ability to intervene, arguments about liability will persist. States that have enacted laws regarding autonomous driving, such as California and Nevada, typically require a licensed driver to be behind the wheel with the capability to take over control if the need arises. These laws indicate that legal responsibility to remain vigilant and prevent accidents will remain with drivers, but drivers will likely point the finger at manufacturers when accidents occur. Manufacturers, of course, will be reluctant to accept liability, not only to avoid direct responsibility for the accident at issue, but to retain consumer confidence in the safety of their product. Even if all blame clearly shifts to the car, fault may have to be apportioned between the computer software and the mechanical components of the car.

The legal theories under which liability for car accidents are pursued will also change dramatically. Instead of a straightforward negligence claim, plaintiffs may be able to present multiple theories of liability under product liability law (design defects, manufacturing defects, failure to warn or instruct), alongside breach of contract, warranty or other claims. All of these issues add more parties, costs and legal questions to accident cases, increasing the role of the attorneys involved and potentially decreasing the chances of settlements.

Estimates show that as much as 90 to 95 percent of car accidents are caused by human error, so the number of accident-related lawsuits should drop significantly when autonomous cars become commonplace. PricewaterhouseCoopers forecasts a reduction of traffic accidents by a factor of 10. Despite a decrease in the number of filings, the severity and complexity of the cases that do arise in the future could increase. Injuries, when they occur, may be more severe. Class action lawsuits and requests for punitive damages could increase.

Other issues besides liability

Aside from liability issues, numerous other issues associated with driverless cars will have significant impact upon not only the legal industry, but upon governmental and regulatory bodies. Issues surrounding personal privacy and data collection will spur more regulation and litigation. Speeding tickets, drunk driving and other traffic offenses may become a thing of the past, changing the role of the police, courts and attorneys who routinely deal with such cases. Even a reduction in traffic stops would completely alter the way police often learn about and investigate many crimes today.

It is clear that legal and liability issues abound, yet hands-free driving has already arrived with few laws in place in most states, including Indiana. It has been known for years that answers would be required in the future, but that future has become the present.•

• Mr. Trainor is an attorney with State Farm Litigation Counsel and is a member of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the author.