Who’s liable in a ‘self-driving’ car crash?

Police officers can often identify which driver is responsible for a traffic accident.

But what about when a self-driving vehicle is involved? Which driver should be liable for that?

The question is increasingly relevant as “partially autonomous” cars become more and more prevalent; three years ago, Allied Market Research valued the global autonomous vehicle market at more than $76 billion.

But answering that question creates a legal dilemma, said Cassandra Burke Robertson, the John Deaver Drinko-BakerHostetler Professor of Law at the Case Western Reserve University School of Law.

“If you ask automobile manufacturers,” said Robertson, also the law school’s director of the Center for Professional Ethics, “they’ll tell you the driver is always fully responsible—even when supervised autonomy fails—because Advanced Driver Assistance Systems require constant human oversight, even when autonomous features are active.”

Robertson recently offered her insight on the issue in a law review article, “Litigating Partial Autonomy,” to be published in the Iona Law Review. In it, she contends there’s enough blame for everyone—including automobile manufacturers.

“The nature of modern semi-autonomous systems requires the human and machine to engage in a collaborative driving endeavor,” she wrote. “The human driver should not bear full liability for the harm arising from this shared responsibility.”

Robertson’s assessment is made even more relevant by several pending cases working their way through the judicial system this spring. More than 10 people have died in accidents involving self-driving cars since 2016, according to the National Highway Traffic Safety Administration.

“As lawsuits involving partial autonomy increase, the legal system will face growing challenges to incentive manufacturers to develop vehicles more safely, and hopefully, leave room for this nascent technology to improve,” said Robertson, who is slated to teach a course in the fall called “Law, Regulation, and Autonomous Vehicles.”

She offers key policy recommendations, including that:

• courts consider collaborative driving as a system—and dividing responsibility—when allocating liability;
• statutory measures that encourage regular software updates for such vehicles;
• customers pursue fraud and warranty claims when they discover that manufacturers overstate their autonomous capabilities. Claims for economic damages can encourage manufacturers to invest in addressing product defects before—rather than after—their customers suffer serious physical injury.