Torts of

the Future:
Autonomous
Vehicles
Addressing the Liability and Regulatory
Implications of Emerging Technologies

MAY 2018
© U.S. Chamber Institute for Legal Reform, May 2018. All rights reserved.
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Torts of the Future:
Autonomous Vehicles
Addressing the Liability and Regulatory
Implications of Emerging Technologies

MAY 2018

Contents of this report are based on the autonomous vehicle sections of two papers previously re-
leased by the U.S. Chamber Institute for Legal Reform: Torts of the Future I (March 2017) and Torts of
the Future II (April 2018).
Visit www.instituteforlegalreform.com/research to read more.

Prepared for the U.S. Chamber Institute for Legal Reform by

Cary Silverman, Phil Goldberg, Jonathan Wilson, and Sarah Goggans, Shook, Hardy & Bacon L.L.P.
In collaboration with Robert McKenna, Orrick partner and former Washington State Attorney General
Autonomous Vehicles
Researchers estimate that autonomous vehicles can reduce
accident rates by up to 90%,1 which would save over 30,000 lives
each year2 and avoid millions of injuries on American roads. As
General Motors Chairman Bob Lutz said, “The autonomous car
doesn’t drink, doesn’t do drugs, doesn’t text while driving, and
doesn’t get road rage. Autonomous cars don’t race other
autonomous cars, and they don’t go to sleep.”3 But technology is
not perfect. Though people may be much safer in an autonomous
car than a traditional vehicle, it is still likely that accidents will
occasionally occur due to a failure in technology, the human driver-
car interface, maintenance, or other factors. There is a vigorous
debate over how to fairly apportion liability in these situations
without chilling life-saving technology.

The human health and safety benefits of In addition, AVs are expected to have
autonomous vehicles (AVs), also known as broader societal benefits, including easing
driverless cars, are broadly hailed. A 2013 traffic congestion, moving people to
study by the Eno Center for Transportation destinations more quickly, burning less fuel,
found that if only 10% of the cars on the and lowering emissions.7 They also can
road were self-driving, 1,000 lives and $18 provide mobility to seniors, people with
billion would be saved each year.4 When vision problems, and others who cannot
90% of the cars are autonomous, those drive on their own.8 It is widely expected
numbers jump to 22,000 lives and $350 that cities will be stocked with fleets of
billion.5 In a widely cited study on the auto shared AVs and that people who spend
insurance industry, audit company KPMG long stretches of time on the road will be
found that autonomous technology will able to do so more efficiently. In short, AVs
reduce accident frequency by 80% by 2040.6 promise to fundamentally change the way

1 Torts of the Future: AVs

people get around. Auto travel will be when the driver’s hands are on the wheel
significantly safer with benefits that ripple because the system anticipates the driver
throughout society. will take control of the car in certain
situations.
Autonomous Vehicle Technology Highly automated vehicles (Level 4), which
When people refer to autonomous vehicles, in most environments are fully
they are largely referring to technology that autonomous, are anticipated to be widely
exists within each car that allows the car to available by 2025.10 Between 2025 and
read its surroundings and make driving 2040, experts expect that vehicles will
decisions based on those readings. The move toward Level 5—a “new normal” of
Society of Automobile Engineers (SAE integrated driving in which there is
International) has developed a taxonomy communication between vehicles and
and definitions for terms related to these infrastructure and vehicles can operate
systems that have become widely used. without any driver present.11
SAE identified six automation levels, Vehicle-to-vehicle communication (V2V) will
from Level 0 (no automation) to Level 5 rely on short-range radio devices to
(full automation).9 transmit vehicle speed, direction, braking
A key distinction exists between SAE’s and other key data points between
Levels 2 and 3. Level 2 is called “partial vehicles. The benefit of this technology is
automation,” and the human driver remains that it will allow a car to “see” around
responsible for monitoring the environment corners and through traffic so that it can
and performing key driving tasks. When a better anticipate when it needs to brake
car reaches Level 3 automation, which SAE and avoid potential collisions. In early
calls “conditional automation,” the stages of automation, this information can
automated car performs all of the dynamic be given to human drivers to make their
driving tasks, with the human driver acting own decisions. The National Highway
as the fallback option. Traffic Safety Administration (NHTSA),
which is developing standards for
As indicated, cars operating at Level 3 are
V2V communication, estimates that
equipped with computer mapping systems,
this technology can eliminate 81% of
radar, cameras, sensors and other
all crashes.12
technologies that allow them to read their
environment, including the shape of the Congress has also funded NHTSA’s
roads, traffic and driving conditions, and research into vehicle-to-infrastructure
perform key dynamic driving tasks. Yet, communication (V2I) networks, whereby
these cars are not fully automated. They cars receive data from roadways and traffic
ultimately require human control and may lights. Such data may include bad weather
have features, such as steering wheel conditions, the shape of the road and
sensors, that require the human driver to whether there are any steep curves ahead,
stay alert and engaged. It is anticipated that the nature of any construction zones, and
the automated features may work only when lights are about to turn red. Rather

U.S. Chamber Institute for Legal Reform 2

than accelerate through a yellow light, as Major automakers, which have been
many humans do, the car could anticipate incorporating elements of self-driving
the red light sooner and slow down more technology into cars, are also heavily
safely and comfortably. investing in autonomous vehicle
technology. In February 2017, Ford
The greatest safety gains will be made
announced plans to invest $1 billion over
when all three of these technologies
the next five years in start-up company
work together.
Argo AI, with a goal of producing self-
About 20 companies are developing self- driving cars for ride-sharing services by
driving cars, including traditional auto 2021.16 General Motors made a similar
manufacturers, technology companies, and investment in Cruise Automation and the
ride-sharing services.13 Several of them ride services company Lyft. It is anticipated
have test cars on the road and are that ride-sharing services will be the way
collecting data on the ability of the cars to that most people will be introduced to
properly read the environment and make autonomous vehicles.
the right driving decisions. Humans can
With more AVs on the road interacting with
repeat mistakes over and over again, but
other drivers and pedestrians, accidents are
the goal for automated cars is to be
inevitable, whether as a result of the
programmed to learn from and not repeat
actions of people or imperfect technology.
mistakes.
Such incidents will test whether the courts,
Among the more well-known self-driving policymakers, manufacturers and users of
features is Tesla’s “autopilot” technology, AVs respond to concerns without imposing
which is intended to guide drivers on unwarranted liability or regulation that
highways. Waymo, which started as significantly delays a technology that should
Google’s AV project, announced in early ultimately make the roads safer by
2018 that its vehicles have five million eliminating human error.
self-driven miles and simulated five billion
miles of autonomous driving.14 The ride- The Vigorous Debate over the
sharing service Uber began test-driving its
autonomous cars in Pittsburgh in late 2016.
Liability Framework for Injuries
Consumers have the option to choose an Involving Autonomous Vehicles
autonomous car, which has a driver ready While heavy-handed regulation can quickly
to take control along with an engineer in drive out autonomous vehicles, the area
the passenger seat. The Pennsylvania with the greatest potential “to derail this
Insurance Department treats the cars’ important technology” is excessive
self-driving features in the same way it litigation.17 Outsized liability, particularly in
treats cruise control, meaning the human the early development and deployment
driver is fully responsible for accidents stages, “could seriously undermine this
under a negligence standard. Uber potentially unprecedented public health
announced that it has $1 million in third- success story.”18 It “could delay or even
party liability insurance and $5 million total wipe out the vision of driverless cars
coverage per incident.15 gaining widespread consumer use.”19

3 Torts of the Future: AVs

 crash and it’s going to be undetermined

“
who or what was at fault.... That’s where
While heavy-handed the difficulty begins.”22

regulation can quickly States are beginning to tackle these liability

issues. California and Nevada law explicitly
drive out autonomous places liability for any accident on the
vehicles, the area with the “operator” of the autonomous vehicle,
defining the operator as the person behind
greatest potential ‘to derail the controls or who “causes the technology
this important technology’ to engage.”23 Under general tort law

”
principles, the element of control is likely to
is excessive litigation. be determinative in other states as well.
“Suppose you’re in a driverless car, and
you see that you’re about to rear-end
another car. Whether you bear some
LIABILITY BASED ON A FAILURE IN THE responsibility for the crash may ultimately
HUMAN-CAR INTERFACE turn on the degree of control you had over
The immediate question for Congress, the car. Could you have reasonably
state legislatures, and courts to decide is prevented the accident, or not?”24 One
how to address liability over the next question that has arisen is whether this test
twenty or so years as society transitions to can be applied fairly when the human
widespread use of fully-automated cars. “driver” has a disability, such as blindness,
During this period, humans and cars’ self- and cannot take control.
driving technology will share the roads and
responsibility and control over driving Other questions also arise: What happens if
decisions. Therefore, as the Brookings a driver falls asleep and the vehicle had
Institution’s Center for Technology driver monitoring systems that failed to
Innovation found in a 2014 study, there will wake up the driver? Can a driver legally rely
be “complex questions of liability shared by on this feature (or lane or brake assist) and
both the human driver and autonomous sue the manufacturer when the car did not
vehicle technology providers.”20 alert him or her of a hazard? Should the
driver be absolved of his or her own
Industry experts broadly agree with both negligence? Can a manufacturer be subject
the complexity and importance of getting to liability for not preventing an accident,
liability issues right during this phase-in even though its technology did not cause
period. “We’re entering a whole new world the harm?
of assessing who’s at fault in an accident
and where the ultimate liability and risk As a legal matter, complete reliance on
ultimately falls,” explained Joe Schneider, such prophylactic safety devices is likely to
an insurance analyst with KPMG.21 David be seen as unreasonable. It also does not
Strickland, a former NHTSA Administrator, make practical sense to subject
echoed this point: “There is going to be a manufacturers to liability just because their
moment in time when there’s going to be a safety devices were not able to prevent
harm in every instance. Even if a

U.S. Chamber Institute for Legal Reform 4

 NEGLIGENCE VS. PRODUCT LIABILITY

“
Courts will be faced with determining the
appropriate standard of care for evaluating
Novel liability issues
whether an autonomous-vehicle
will arise when accidents manufacturer is subject to liability for a car
occur between human drivers accident. Traditionally, car accidents are

”
assessed through the lens of driver
and autonomous cars. negligence, with the potential for product
liability only when a defect in the car
causes the accident or is alleged to have
exacerbated the injuries. A manufacturer
preventative safety device avoids harm has never had a duty “to design an
20% of the time, it still offers improved accident-proof or fool-proof vehicle.”26
safety over vehicles without that
Legal scholars suggest that negligence
technology. Excessive liability for the
should govern liability for car accidents,
remainder of the cases could delay their
whether due to the decision-making of
introduction or stop these technologies
autonomous vehicles or human drivers.
from being improved over time. If the
They explain that these situations differ
device did not cause harm, there should be
from traditional product harms because of
no liability under commonsense and
the huge safety gains: “Holding computer-
traditional tort principles.
generated torts to a negligence standard
Novel liability issues will arise when will result in an improved outcome; it will
accidents occur between human drivers accelerate the adoption of automation” and
and autonomous cars. For example, there thereby reduce accidents.27 A negligence
may be differences between how humans assessment would focus on whether the
and autonomous cars drive.25 Autonomous car’s decision or act showed a lack of
cars may be programmed to drive in 100% reasonable care under the circumstances,
compliance with the law. They may drive at not whether the computer could have been
the speed limit on a highway where the better designed. After an accident, a car’s
traffic customarily moves significantly programming can be updated to account for
faster, come to a full stop and pause at a any new information gained to help cars
stop sign, or stop at a yellow light where make better decisions going forward.
most drivers would have continued
“Personal injury attorneys fearing that their
through. People who are unaccustomed to
business may dry up with the adoption of
such “safe” driving could rear-end an
driverless cars,” however, are looking for
autonomous vehicle. Finally, when a fender
ways to pursue “autonomous-vehicle
bender involves a human driver and a
makers and their deep pockets.”28 They
fully-autonomous vehicle, should the law
want to shift liability away from negligence
recognize a presumption that the accident
claims against drivers with liability
occurred as a result of human error
insurance limits to product liability lawsuits
absent a showing of a defect in the
targeting car manufacturers, software
autonomous vehicle?
designers, and component makers.29

5 Torts of the Future: AVs

To this end, the American Association For Lessons can be learned from current no-fault
Justice (AAJ), the national plaintiffs’ lawyer systems so that one can be tailored to
organization, issued a report in February autonomous cars to maximize efficiency.
2017 advocating that manufacturers should Another option is for states or the federal
bear the burden of car injuries.30 While AAJ government to establish a fund to
acknowledged the “revolutionary impact” compensate those who are injured, much
that so-called “robot cars” will have on like the National Childhood Vaccine Injury
public safety,31 it asserted that imposing Fund. Congress established the Vaccine
strict liability on automakers “may eventually Fund in 1986 when liability concerns
be the most appropriate approach to threatened public health by jeopardizing
liability.”32 Under AAJ’s approach, access to vaccines. Under this system,
“manufacturers would accept responsibility anyone injured by a vaccine can apply to the
for all crashes caused by their cars.”33 Fund for fair compensation without having
ALTERNATIVE LIABILITY THEORIES to establish fault. The Fund is financed
The desire to provide compensation for through a nominal ($0.75) excise tax on each
people injured in autonomous cars without dose of vaccine routinely administered to
chilling the advancement of this life-saving children to prevent disease.35 As a result of
technology has led legal scholars to consider the Fund, immunizations have increased,
alternatives to traditional tort liability. Two supplies have remained stable, and prices
oft-mentioned options are no-fault insurance have decreased. A fund tailored to the
and a victim compensation fund. Both have autonomous car market could have a
precedent and both can be shaped to comparable effect—assuring that those who
address the specific needs of the are injured in accidents receive
autonomous vehicle market. compensation while not allowing excessive
liability to impede the development and
The RAND Corporation found that rather advancement of technology that makes the
than shift liability from the driver to the auto roads safer for everyone.
manufacturer, as AAJ suggests, it would be
more beneficial for drivers to carry no-fault Federal preemption of state tort claims in
liability insurance.34 A dozen states have conjunction with either of these no-fault
used no-fault liability since the 1970s. The regimes “could speed the development and
benefit of this system is that drivers utilization of this technology and should be
maintain their own insurance and are considered, if accompanied by a
compensated regardless of whether anyone, comprehensive federal regulatory regime.”36
including the driver, was legally at fault.

“ The desire to provide compensation for people injured in

autonomous cars without chilling the advancement of this life-
saving technology has led legal scholars to consider alternatives

”
to traditional tort liability.

U.S. Chamber Institute for Legal Reform 6

First Accidents and Outcomes concluding that there was no defect in the
design or performance of the Tesla’s
Involving AV Technology autopilot system.41 The agency recognized
GOOGLE CAR SIDESWIPES BUS–FEB. 2016 that since autopilot is not cross-traffic
A minor accident occurred between a aware, it requires a driver’s “continual and
Lexus SUV, which Google had modified full attention to monitor the traffic
with sensors and controls to enable self- environment,” and the driver had sufficient
driving, and a city bus in Mountain View, time to brake to avoid the accident.42
California. The Google car, which had a Nevertheless, the incident became a touch
human engineer inside, assumed a city bus point for liability discussions. Was the driver
would slow down and allow the car to to blame for not being attentive? Is Tesla
merge, but the bus continued and the car liable because the car did not stop on its
sideswiped the bus.37 No one was injured own? Or is responsibility shared? If shared,
in the February 2016 low-speed collision. In then how is that responsibility divided?
the wake of that accident, Google
implemented 3,500 new tests and modified MOTORCYCLIST COLLISION RESULTS
its technology to avoid similar accidents in IN FIRST KNOWN LAWSUIT AGAINST
the future.38 AUTOMAKER—JAN. 2018
In January 2018, the first known lawsuit
TESLA AUTOPILOT DEATH–MAY 2016 against a manufacturer was filed over an
In May 2016, a driver was killed when he accident involving an AV.
reportedly relied entirely on the autopilot
In that lawsuit, a motorcyclist alleges that
system to drive his Tesla Model S, which is
he suffered neck and shoulder injuries after
not its intended use.39 The car crashed into
a 2016 Chevy Bolt EV knocked him to the
the side of a truck that was crossing the
ground while traveling on a San Francisco
highway. Tesla found that the autopilot did
street.43 General Motors (GM) and its
not recognize “the white side of the tractor
Cruise subsidiary have had a permit to test
against a brightly lit sky.”40 In January 2017,
autonomous vehicles on California roads
NHTSA completed its investigation,
since June 2015.44 The accident occurred in
December 2017.
According to the complaint, which is just

“
four pages long, a driver was in the front
seat, but was operating the car in self-
In January 2017,
driving mode with his hands off the
NHTSA completed its steering wheel.45 The operator instructed
investigation, concluding the Bolt to move from the center to the left
that there was no defect in lane. The complaint alleges that the
motorcyclist, who was traveling directly
the design or performance
behind the car in the center lane, attempted
of the Tesla’s autopilot

”
to move ahead and pass. As he did, the
system. plaintiff alleges that the Bolt abruptly
swerved back into its original lane, striking
him and knocking him to the ground.46

7 Torts of the Future: AVs

As is frequently the case in car accidents,

“
there is more than one side to this story. In a
report GM filed with California’s Department The lawsuit suggests
of Motor Vehicles, the automaker explained
that the Bolt was driving in the middle lane
that as cars become
when it saw a gap and attempted to merge autonomous, attorneys
into the left lane.47 When the minivan ahead
of the Bolt in the center lane slowed down,
whose bread-and-butter
the Bolt abandoned its attempt to merge work is auto accident
left. As the Bolt was “re-centering” itself in claims may continue to
the middle lane, the plaintiff was
approaching the car, “lane-splitting” bring traditional
between the center and right lanes in slow, negligence claims, rather
heavy traffic.48 As the motorcycle moved
into the center lane, it “glanced the side of than complex product

”
the Cruise AV, wobbled, and fell over,” liability lawsuits…
GM’s report said.49 The San Francisco Police
Department report indicates that the
motorcyclist was at fault for attempting to
overtake and pass another vehicle on the reasonable person would in similar
right before it was safe to do so, but the circumstances. Basically, the lawsuit
motorcyclist’s attorney also says the police treats the AV much like a person, rather
report supports the motorcyclist’s version than as a product.
of the events.50
The lawsuit, which seeks unspecified
The lawsuit names only GM as a damages, as well as attorneys’ fees and
defendant; it does not claim the Bolt’s punitive damages, is pending in the
operator contributed to the accident. The U.S. District Court in San Francisco. It
sole claim, however, is negligence, making remains to be seen whether the vehicle
the lawsuit more like a traditional auto recorded and stored video or other data
accident claim than a product liability claim that will show precisely what occurred and
that alleges that a vehicle was defectively can be produced in discovery, and whether
designed. The complaint alleges that the parties settle or proceed to trial.
General Motors owed the plaintiff a duty to
“hav[e] its Self-Driving Vehicle operate in a The lawsuit suggests that as cars become
manner in which it obeys the traffic laws autonomous, attorneys whose bread-and-
and regulations,” and breached that duty butter work is auto accident claims may
“in that its Self-Driving Vehicle drove in continue to bring traditional negligence
such a negligent manner that it veered into claims, rather than complex product liability
an adjacent lane of traffic without regard for lawsuits that likely necessitate expert
a passing motorist....”51 If the case testimony on auto design and autonomous
proceeds to trial, the plaintiff may argue technology. One thing appears certain,
that the Bolt failed to perform as a however: auto manufacturers that

U.S. Chamber Institute for Legal Reform 8

incorporate autonomous technology into The Road Forward
their vehicles are increasingly likely to be
named as defendants in motor vehicle NEW NHTSA REGULATORY GUIDANCE
accident cases. In September 2017, NHTSA released new
voluntary guidance entitled “Automated
ARIZONA PEDESTRIAN DEATH-MARCH 2018 Driving Systems: A Vision for Safety 2.0.”55
The first known fatality stemming from an The new 36-page guidance replaces and
AV striking a pedestrian occurred in March significantly pares down 2016 NHTSA
2018 in Tempe, Arizona, a Phoenix suburb. guidance issued by the Obama
The accident occurred when an administration.56 It eases the process for
autonomous Uber test vehicle, a 2017 manufacturing, testing and deploying AVs
Volvo, hit a 49-year-old woman who was while discouraging states from
walking a bicycle across the road at night. implementing potentially conflicting AV
The vehicle was moving at 40 miles per regulations.
hour in self-driving mode with an employee
behind the wheel. NHTSA’s Safety 2.0 focuses on automation
Levels 3 to 5 (Conditional, High, and Full
The vehicle’s cameras recorded both the Automation) and covers all vehicles under
pedestrian’s and the operator’s conduct the agency’s jurisdiction. The guidance
during the accident. What those cameras describes 12 “priority safety elements”57
captured (a pedestrian in dark clothing for consideration in the design,
entering the roadway at night outside a development, testing, and deployment of
crosswalk and a backup driver who AV technologies. The guidance encourages
appeared distracted) may have led the companies engaged in the testing and
parties to enter a quick settlement.52 deployment of AVs to submit to NHSTA
Uber responded by proactively pulling its “Voluntary Safety Self-Assessment” letters
test vehicles off the roads in all cities after demonstrating how they have addressed
the accident and Arizona Governor Doug the safety elements. The guidance,
Ducey suspended the ride-sharing service’s however, makes clear that these letters
tests in his state.53 NHTSA and the National are not required.
Transportation Safety Board, an Safety 2.0 distinguishes the roles of the
independent body known for its federal and state governments in regulating
involvement after airplane crashes and train AVs. NHTSA is solely responsible for
wrecks, are investigating the accident.54 regulating the safety, design, and
performance aspects of motor vehicles
while states are responsible for regulating
the human driver and vehicle operations.
NHTSA’s guidance provides a “best
practices” framework that states may use
in drafting applicable laws and regulations.
When states craft such laws and

9 Torts of the Future: AVs

regulations, NHTSA encourages them to: While there are differences in the Senate
(1) provide a “technology-neutral” and House bills, they both provide the
environment; (2) provide licensing and federal government with a framework for
registration procedures for AVs; (3) provide developing AV rules. They charge NHTSA
reporting and communication mechanisms with regulating the design, construction,
to public safety organizations; and (4) and performance of the vehicles, with the
review traffic laws that may serve as goal of encouraging their testing and
barriers to operation of AVs. deployment. The bills would authorize
NHTSA to update Federal Motor Vehicle
NHTSA is already working on updating its
Safety Standards and grant exemptions
guidance for “Safety 3.0,” which will
where needed, and both would require
emphasize a unified intermodal approach to
automakers to develop cybersecurity plans.
automated driving systems policies.58 The
They would preempt state laws in the areas
agency sought input on the new guidance
regulated by NHTSA, while preserving the
at a March 1, 2018 AV summit.59
states’ traditional authority to regulate
LEGISLATION ADVANCES registration, licensing, insurance, law
As NHTSA releases and updates its guidance, enforcement, and traffic laws. The
Congress has also taken up the issue of AVs. preemption provision is considered
If the proposed legislation becomes law, it particularly essential, since introducing AVs
may help accelerate AV deployment. will become increasingly complicated as
more states enact their own laws.
In September 2017, the U.S. House of
Representatives passed the Safely
Ensuring Lives Future Deployment and
Research in Vehicle Evolution (SAFE
DRIVE) Act with broad bipartisan support.60
The Senate has its own AV legislation
pending, the American Vision for Safer
Transportation through Advancement of
Revolutionary Technologies (AV START)
Act.61 The Senate Committee on
Commerce, Science, and Transportation
favorably reported the bill in October 2017.

“ The preemption provision is considered particularly

essential, since introducing AVs will become increasingly

”
complicated as more states enact their own laws.

U.S. Chamber Institute for Legal Reform 10

 Department of Motor vehicles issued 50

“
Autonomous Vehicle Testing Permits to
various companies under the 2014 rules.67
[A]t least 41 states and
the District of Columbia have BUILDING CONSUMER CONFIDENCE
considered AV legislation over Consumers, manufacturers, and insurers
the past seven years, according need to feel they are treated fairly in the
event of a crash. Developing confidence in
to the National Conference of the safety of autonomous vehicles and the
State Legislatures. Twenty-two availability of a just remedy should an injury
states have passed such laws, occur is important to gaining acceptance of
and governors in 10 states the new technology.
have issued executive orders Understanding this need, some

”
related to AVs. manufacturers have said that they will
accept liability for accidents involving their
fully-autonomous cars. Erik Coelingh,
Volvo’s senior technical leader for safety
and drive support technologies, explained
STATES MOVING FORWARD that when the company’s fully-autonomous
Calls for preemption are warranted, as at system debuts as anticipated in 2020, its
least 41 states and the District of Columbia vehicles will include several redundancies
have considered AV legislation over the to avoid accidents and eliminate human
past seven years, according to the National error: “Whatever system fails, the car
Conference of State Legislatures.62 Twenty- should still have the ability to bring itself to
two states have passed such laws,63 and a safe stop.”68
governors in 10 states have issued Tesla has stated that it will accept liability if
executive orders related to AVs.64 State the accident is “endemic to our design.”69
rules for testing AVs on public roads can Tesla’s Elon Musk said that “[p]oint of
vary, from requiring a person in the driver’s views on autonomous cars are much like
seat at all times to requiring no human being stuck in an elevator in a building.
driver in the car. Does the Otis [Elevator Company] take
Fully autonomous vehicles are already responsibility for all elevators around the
operating in states such as Arizona, Florida, world, no they don’t.”70 But they do when
Michigan, and Pennsylvania.65 California is an incident is their fault. Tesla has shared
the most recent state to change its rules. information with NHTSA showing that
As of April 2018, AVs can be tested on crash rates involving its vehicles dropped
public roads in the Golden State without a nearly 40% since autopilot came online.71
driver behind the wheel.66 Under previous In the short term, courts will need to work
rules in place since 2014, AVs could be through these thorny issues, and determine
tested in the state only with a driver sitting and allocate liability, on a case-by-case basis.
behind the wheel who is able to take
control if needed. The California

11 Torts of the Future: AVs

Endnotes
1 Michele Bertoncello & Dominik Wee, Ten 16 Alexandria Sage, Ford to Invest $1 Billion
Ways Autonomous Driving Could Redefine in Autonomous Vehicle Tech Firm Argo AI,
the Automotive World, McKinsey & Company Reuters, Feb. 10, 2017.
Automotive & Assembly, June 2015.
17 Adam Thierer, When the Trial Lawyers Come for
2 
See Insurance Institute for Highway Safety Loss the Robot Cars, Slate.com, June 10, 2016; see
Data Institute, Fatality Facts: Yearly Snapshot also Douglas Newcomb, Will Lawsuits Kill the
(Nov. 2016) (reporting 35,092 motor vehicle Autonomous Car?, MSN Autos, Apr. 15, 2013;
crash fatalities in 2015). Dan Strumpf, Liability Issues Create Potholes on
the Road to Driverless Cars, Jan. 27, 2013.
3 Alan D. Kaplan & Robert Sanzillo, Driverless
Cars, Prod. Liab. L. & Strategy, Aug. 2016. 18 Thierer, supra.
4 Eno Center for Transportation, Preparing a 19 Chris Nichols, Liability Could Be Roadblock for
Nation for Autonomous Vehicles: Opportunities, Driverless Cars, San Diego Trib., Oct. 30, 2013.
Barriers and Policy Recommendations 8 (Oct.
20 John Villasenor, Products Liability and
2013).
Driverless Cars: Issues and Guiding Principles
5 Id. for Legislation 13-14 (Center for Technology
Innovation at Brookings, Apr. 2014).
6 
See KPMG, Automobile Insurance in the Era of
Autonomous Vehicles 5 (June 2015). 21 
See Hope Reese, When Your Driverless Car
Crashes, Who Will Be Responsible? The
7 Eric Kroh, Fault Lines: How Driverless Cars
Answer Remains Unclear, Tech Republic, Sept.
Could Open Up New Roads for Product Liability
7, 2016.
Lawyers, Law360, Mar. 18, 2016.
22 Keith Naughton, What Happens if Two
8 Id.
Driverless Cars Crash? Lawyers Drool,
9 
See SAE Int’l, Automated Driving: Levels of Bloomberg News, Dec. 22, 1015.
Driving Automation are Defined in New SAE
23 Cal. Vehicle Code § 38750; Nev. Rev. Stat.
International Standard J3016 (2014).
§ 482A.030.
10 See KMPG, supra, at 5.
24 Brian Fung, The Big Question About Driverless
11 See id. at 3. Cars No One Seems Able to Answer, Wash.
Post, Feb. 17, 2016 (emphasis in original).
12 Nat’l Highway Traffic Safety Admin., Vehicle
to Vehicle Communications: Readiness of V2V 25 Kroh, supra.
Technology for Application 17 (Aug. 2014).
26 
Larsen v. Gen. Motors Corp., 391 F.2d 495, 502
13 Danielle Muoio, 19 Companies Racing to Put (8th Cir. 1968).
Self-Driving Cars on the Road by 2021, Business
27 Ryan Abbott, The Reasonable Computer:
Insider, Oct. 17, 2016.
Disrupting the Paradigm of Tort Liability, 86 Geo.
14 Sean O’Kane, How Tesla and Waymo are Wash. L. Rev. 1 22 (2018).
Tackling a Major Problem for Self-Driving Cars:
28 Kroh, supra.
Data, The Verge, Apr. 19, 2018.
29 Id.
15 Ben Seal, What Happens if a Self-Driving Uber
Is in a Crash?, Law.com, Sept. 16, 2016. 30 Am. Assoc. for Justice, Driven to Safety: Robot
Cars and the Future of Liability (Feb. 2017).
31 Id. at 4-5.

U.S. Chamber Institute for Legal Reform 12

32 Id. at 27. 48 
See Baron, supra; see also Peter Holley, After
Crash, Injured Motorcyclist Accuses Robot-
33 Id. at 27-28.
driven Vehicle of ‘Negligent Driving’, Wash.
34 James M. Anderson et al., Autonomous Vehicle Post. Jan. 25, 2018; Rachel Graf, GM Hit with
Technology: A Guide for Policymakers (RAND First-Known Suit Over Self-Driving Car Crash,
Corp. 2016). Law360, Jan. 24, 2018.
35 
See Health Resources & Services Admin., 49 Baron, supra.
About the National Vaccine Injury Compensation
50 See id.
Program, at https://‌‌‌www.hrsa.gov/vaccine-
compensation/about/index.html (last visited Apr. 51 Complaint, Nilsson v. General Motors LLC, at 5.
23, 2018).
52 
See Ryan Randazzo, Uber Reaches Settlement
36 Nidhi Kalra, James M. Anderson & Martin with Family of Woman Killed by Self-Driving Car,
Wachs, Liability and Regulation of Autonomous The Republic, Mar. 29, 2018; Faiz Siddiqui, Uber
Vehicle Technologies (RAND Corp., Apr. 2009). Reaches Settlement with Family of Victim Killed
After Being Struck by One of Its Self-Driving
37 Joseph Serna, Video Shows Google Self-Driving
Vehicles, Wash. Post, Mar. 29, 2018.
Car Hit a Bus in Silicon Valley, L.A. Times, Mar.
9, 2016. 53 
See Ryan Randazzo, Arizona Gov. Doug Ducey
Suspents Testing of Uber Self-Driving Cars, Mar.
38 
See Wayne Cunningham, Google’s Chris
26, 2018.
Urmson Explains Self-Driving Car Crash, CNet,
Mar. 11, 2016. 54 
See Michael Laris & Faiz Siddiqui, After
Driverless Uber Hits and Kills Pedestrian, Probe
39 
See Rachel Abrams & Annalyn Kurtz, Joshua
Looks for Broader Safety Insights, Wash. Post,
Brown, Who Died in Self-Driving Accident,
Mar. 20, 2018.
Tested Limits of His Tesla, N.Y. Times, July 1,
2016. 55 
See Nat’l Highway Transp. Safety Admin.,
Automated Driving Systems: A Vision for Safety
40 
See Tesla, A Tragic Loss (blog post), June 30,
2.0 (Sept. 2017).
2016.
56 Nat’l Highway Transp. Safety Admin., Federal
41 
See Nat’l Highway Traffic Safety Admin., ODI
Automated Vehicles Policy: Accelerating the
Resume, Investigation PE 16-007 (Closed Jan.
Next Revolution in Roadway Safety 5 (Sept.
19, 2017).
2016).
42 
Id.; see also Danielle Muoio & Reuters, The
57 The priority safety elements include: (1) system
Government Just Closed its Investigation into
safety, (2) operational design domain, (3)
the First Autopilot Fatality, Business Insider,
object and event detection and response, (4)
Jan. 19, 2017.
fallback (minimal risk condition), (5) validation
43 
See Complaint, Nilsson v. General Motors LLC, methods, (6) human machine interface, (7)
No. 4.18-cv-00471-KAW (N.D. Cal. filed Jan. 22, vehicle cybersecurity, (8) crashworthiness, (9)
2018). post-crash ADS behavior, (10) data recording,
(11) consumer education and training, and (12)
44 
See Ethan Baron, Blame Game: Self-driving Car
federal, state and local laws coordination. See
Crash Highlights Tricky Legal Question, Mercury
id.
News, Jan. 23, 2018.
58 
See David Shepardson, U.S. Transportation
45 
See Complaint, Nilsson v. General Motors LLC,
Agency Calls March 1 ‘Summit’ on Autonomous
at 2.
Cars, Reuters, Feb. 9, 2018.
46 Id. at 3.
59 
See Nat’l Highway Transp. Safety Admin.,
47 
See State of California DMV, Report of Traffic USDOT Automated Vehicles Activities, Feb. 13,
Accident Involving Autonomous Vehicle, Dec. 2018.
14, 2017.

13 Torts of the Future: AVs

60 
See The Safely Ensuring Lives Future 71 
See ODI Resume, Investigation PE 16-007,
Development and Research in Vehicle Evolution supra, at 10-11; see also Tom Randall, Tesla’s
(SELF DRIVE) Act, H.R. 3388, 115th Cong. Autopilot Vindicated With 40% Drop in Crashes,
(2017-2018). The House approved the bill on a Bloomberg Technology, Jan. 19, 2017.
voice vote.
61 
See The American Vision for Safer
Transportation through Advancement of
Revolutionary Technologies (AV START) Act,
S. 1885, 115th Cong. (2017-2018).
62 
See Nat’l Conference of State Legislatures,
Autonomous Vehicles, Self-Driving Vehicles
Enacted Legislation, Mar. 26, 2018.
63 States that have enacted autonomous vehicle
laws include Alabama, Arkansas, California,
Colorado, Connecticut, Florida, Georgia, Illinois,
Indiana, Louisiana, Michigan, Nevada, New York,
North Carolina, North Dakota, Pennsylvania,
South Carolina, Tennessee, Texas, Utah,
Virginia, and Vermont, as well as the District of
Columbia. Id.
64 Governors have signed executive orders
regarding autonomous vehicles in Arizona
(2015, 2018), Delaware (2017), Hawaii (2018),
Idaho (2018), Maine (2018), Massachusetts
(2016), Minnesota (2018), Ohio (2018),
Washington (2017), and Wisconsin (2017). Id.
65 
See Sharon Jayson, Driverless Vehicles Hit
the Road in Texas, U.S. News, Feb. 21, 2018;
Cheryl Miller, We Asked California Lawyers for
Views on the New Driverless Rules. Here’s
What They Said, The Recorder, Oct. 13, 2017;
Russ Mitchell, Totally Driverless Cars Could be
Allowed on California Roads by June 2018, L.A.
Times, Oct. 11, 2017.
66 
See State of Cal. Dep’t of Motor Vehicles, Press
Release, Driverless Testing and Public Use
Rules for Autonomous Vehicles Approved, Feb.
26, 2018.
67 
See State of Cal. Dep’t of Motor Vehicles,
Permit Holders.
68 Corine Iozzio, Who’s Responsible When a Self-
Driving Car Crashes, Scientific American, May 1,
2016.
69 Daniello Muoio, Elon Musk: Telsa Not Liable
for Driverless Car Crashes Unless It’s Design
Related, Business Insider, Jan. 4, 2017.
70 Id.

U.S. Chamber Institute for Legal Reform 14

Notes

15 Torts of the Future: AVs

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