Tesla’s Autopilot Cleared by Government Investigation, but Questions Remain About Liability for Accidents Involving Self-Driving and Safety Technology

–by Aya Hoffman

Citations:

https://www.wired.com/2017/01/car-dealers-dangerously-uneducated-new-safety-features/; http://fortune.com/2016/07/11/tesla-autopilot-joshua-brown/;

http://jalopnik.com/the-latest-tesla-lawsuit-proves-how-important-human-dri-1790904371; https://www.nytimes.com/2016/09/15/business/fatal-tesla-crash-in-china-involved-autopilot-government-tv-says.html;

http://www.forbes.com/sites/omribenshahar/2016/09/22/should-carmakers-be-liable-when-a-self-driving-car-crashes/#1e0645771f40;

http://www.greencarreports.com/news/1104183_lets-be-clear-teslas-autopilot-is-not-a-self-driving-car;

http://money.cnn.com/2016/07/07/technology/tesla-liability-risk/;

https://www.scientificamerican.com/article/who-s-responsible-when-a-self-driving-car-crashes/;

https://www.scientificamerican.com/article/who-s-responsible-when-a-self-driving-car-crashes/

Abstract: Just a day after the National Highway Traffic Safety Administration (“NHTSA”) closed its investigation into Tesla Motors’ autopilot technology, Chinese media reported another fatal collision involving a Model S sedan. Currently, victims face significant challenges in holding automakers liable for accidents involving assistive technology, but the market may be moving toward a strict liability standard as true self-driving cars become more widely available.

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Although the NHTSA ended its investigation into Tesla Motors’ autopilot system without requiring a recall or fine, questions about the safety of such systems remain. Tesla, based in Palo Alto, California, manufactures an all-electric line of vehicles, including the Tesla Roadster, Model S, Model X, and Model 3. When it was introduced in 2015, Tesla’s autopilot system was the first of its kind in consumer vehicles.

The NHTSA investigation was initiated after a fatal crash in May 2016, involving a Tesla Model S sedan. Joshua Brown was killed after the autopilot system installed in his vehicle failed to recognize a turning tractor-trailer. On January 19, 2017, the NHTSA reported that the system was not defective at the time of the crash. The agency noted that Tesla’s autopilot system was designed to prevent rear-end collisions, and still required a driver’s full attention while in operation. Brown’s family hired a law firm with experience in product defect litigation to conduct its own investigation into the crash.

However, Tesla came under renewed scrutiny the following day, when another fatal collision involving a Model S was reported in China. On January 20, 2017, Gao Yaning was killed when his vehicle collided with a road-sweeping truck. In-car video suggests that the brakes were not applied prior to impact with the rear of the truck, but it is unclear whether the autopilot system was activated.

If the families of Brown and Yaning file suit against Tesla, they will face significant challenges. Despite the modern technology at issue, the available legal theories for product liability and accident compensation claims are traditional – strict liability, negligence, design-defects law, failure to warn, and breach of warranty. However, Tesla requires buyers to consent to contract terms which require drivers to keep their hands on the steering wheel at all times, including when the autopilot system is engaged. And technically, Tesla’s current autopilot technology is not “self-driving.” Although it can steer a car in traffic and make passing maneuvers, it is not connected to a navigation system and requires an alert and responsible human driver.

Interestingly, as truly autonomous vehicles enter the mainstream, it may become easier for drivers to hold car manufacturers liable for accidents involving self-driving technology. Currently, carmakers are not liable for most accidents, which are attributed to driver behavior. While fully autonomous vehicles are still in development, some carmakers, including Volvo, Google, and Mercedes-Benz, have already pledged to accept strict liability for resulting accidents. Although it may seem counter-intuitive, these companies are betting that advanced safety programming will significantly decrease the rate of accidents. Of course, the costs of liability will be passed onto consumers by way of increased car prices. However, some legal scholars suggest this increase may be offset by a decrease in the cost of insurance premiums for self-driving vehicles.

As is common with emerging technologies, early adopters face the most risk. It may be difficult to hold carmakers liable for accidents during this transitional period, compared to when fully self-driving cars are established in the market. This problem is compounded by the fact that car dealers may be uninformed about the technologies inside the vehicles they sell. In the spring of 2016, researchers from the Massachusetts Institute of Technology’s Agelab conducted interviews at car dealerships in the Boston area. The researchers went to the dealerships undercover and asked salespeople questions about common automated driver assistance programs, including adaptive cruise control, blind spot monitoring, and collision avoidance. Of the eighteen salespeople interviewed, only six provided “thorough” explanations of the technologies. According to the researchers, four salespeople gave “poor” explanations and two provided incorrect information that was potentially dangerous. Although this was a small study, it reinforces the need for consumers to educate themselves on the operating requirements and limitations of the technologies installed in their vehicles.

Even when cars are equipped with advanced technology, old-school methods still provide drivers the best protection against potentially fatal accidents – education and constant vigilance.

New York State Senate Passes Bill to Accommodate Ride Sharing Apps, but the Assembly Will Not Follow

—by S. Alex Berlucchi

Sources: S.B. 4280, 238th S. Sess., 2015-2016 Reg. Sess. (N.Y. 2016); Mike McAndrew, Senate Passes Uber in Upstate NY Bill, but Assembly Expected to Balk, Syracuse.com, 1, 1 (June 17, 2016) http://www.syracuse.com/state/index.ssf/2016/06/senate_passes_uber_in_upstate_ny_bill_but_assemby_expected_to_balk.html

Abstract:  The New York State Senate passed a bill to allow “transportation network companies,” such as Uber and Lyft, to operate in areas of New York State outside of New York City.  Presently, concerns for the safety of the passengers and the insurance requirements for the drivers are causing debate within both the Senate and the Assembly.  While this bill passed in the Senate, it is not likely to pass in the Assembly.  Facing political pressure from Governor Andrew Cuomo, a resolution to the prohibition of ride-booking companies is imminent.

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The New York State Senate passed a bill allowing “transportation network companies” such as Uber and Lyft, to operate in New York State.  Currently, these companies are only legally allowed to operate in New York City.  Ride-booking companies received an exception to operate in New York City, and the convenient, trend-setting ride services are advocated as an improved means of public transportation.  While this bill did pass in the Senate, the Assembly is reluctant to follow suit.

Senator James Seward (R-Oneonta) sponsored New York Senate Bill 4280, which passed in the Senate Insurance Committee.  The bill would require a minimum of one million dollars in liability coverage whenever a drive has a “paid passenger in their personal vehicle.”  When there are no riders, the Bill similarly mandates minimum coverage, totaling $200,000.  This minimum is higher than the minimum insurance requirements for taxi cab drivers in local municipalities, such as Utica, thus demonstrating an effort to maintain the current taxi cab industry while allowing “transportation network companies” to spread to other cities in New York.  Furthermore, this Bill allows for local control over all other issues, such as accessibility and requirements to act as an independent contractor.

This bill passed, in the Senate, despite strong opposition from the traditional taxi cab and limousine industry.  Similar to protests seen in New York City, allowing ride-booking companies to operate in cities such as Syracuse, Buffalo, and Rochester will have a detrimental effect on the cab industries in these respective localities.  For example, currently only 200 taxi cab licenses are issued, and all 200 are currently taken.  An influx of transportation options may lead to increased litigation with the taxi cab industry; however, there are two issues with the Bill as presently written.

The first issue is a lack access to “transportation network companies” for individuals with disabilities.  Presently, of the 30,000 independent contracts operating in New York City, there are zero vehicles which are wheelchair accessible.  This will be an issue for passing a law in New York, as the Assembly has placed an emphasis on handicap accessibility, as well as safety of the passengers.

In the Assembly, the parallel bill to New York Senate Bill 4280 includes higher mandatory minimum levels of insurance coverage.  There is also an express need to perform background checks on the drivers, in the interest of public safety, and a mandate for handicap accessibility.  These provisions were not included in the Senate version of the Bill.   Therefore, the Assembly is unlikely to resolve these issues.

This conversation began in the New York State Legislature more than one year ago.  Gov. Andrew Cuomo spoke to the positive aspects of ridesharing, or ride-booking, as a rapidly expanding business.  As a growing aspect of the technology industry, these “digital networks” provide a valuable service both to citizens of New York, and tourists who may be visiting.

Despite the benefit, the State Legislature is divided on the interests of public safety, and the autonomy provided to local governments will still be a barrier in allowing “transportation network companies” to operate.  The Assembly is not likely to pass the current bill as it is written.  In addition, while the Senate focused on insurance minimums to pass the Bill, the Assembly will need to resolve more issues before proposing a Bill which may be duly considered.  Based on the public response, this discussion is unlikely to resolve itself during the current session.