A.        Introduction

At a recent shareholder meeting, Elon Musk told the audience, “eventually, all cars will be self-driving.” Musk has also stated Tesla plans to have self-driving cars available around May of 2023.

There can be no doubt that autonomous vehicles (AVs) are the future of transportation as nearly every major automobile manufacturer is working on their version of a driverless automobile. As manufacturers pour billions of dollars into this technology, the legal field will need to adapt to the changing regulatory and liability environment that is sure to follow.

B.        The Varying Degrees of Automation

While fully automated vehicles have not yet made it onto our roadways, many vehicles are equipped with some level of automation, such as lane centering, adaptive cruise control, and advanced crash avoidance features. The National Highway Traffic Safety Administration (NHTSA) has adopted definitions from SAE International to distinguish between the various levels of vehicle automation. In their simplest form, those definitions are as follows:
 
C.        Regulation of AVs

The federal government has, for the most part, left the regulation of AVs to state governments. However, it has published voluntary guidance to assist states in creating their own statutory framework. NHTSA also issued a Standing General Order in 2021 requiring manufacturers and operators of AVs and vehicles equipped with SAE Level 2 systems to report crashes to the agency.[2] Meanwhile, the U.S. Department of Transportation has authored a Comprehensive Plan presenting key actions the Department is pursuing related to enabling and overseeing the safety of integrating Automated Driving Systems (ADS) into the transportation system.[3]

California has been one of the leaders in the regulation of AVs and has taken an aggressive approach. For instance, California requires a manufacturer testing an AV on its roads to maintain $5 million in insurance or surety bond coverage.[4] AVs are also required to have a mechanism to capture and store technology sensor data for at least 30 seconds before a collision occurs, and the collision data must be preserved for three years.[5] Notably, as of August 5, 2022, the California DMV has received 499 Autonomous Vehicle Collision Reports.[6]

In Washington, the regulation of AVs is still in its infancy. However, as in many other parts of the country, Washington has taken steps to prepare for the operation of AVs on our public roadways. In 2018, the Washington State Legislature directed the Washington State Transportation Commission to begin developing recommendations to prepare the state for this emerging technology. This directive is enshrined in RCW 47.01.510, which provides:
 
The Legislature has also enacted Chapter 46.92 RCW (Autonomous Motor Vehicles). Currently, the statute is limited to RCW 46.92.010, which sets forth requirements for any manufacturer wishing to test an AV on Washington’s roadways, including the type of notice that must be provided to the state prior to commencing testing as well as accident reporting requirements (most notably, whether the autonomous driving system was operating the vehicle at the time of or immediately prior to the collision). RCW 46.92.010(3)(d) specifically states that “[t]he provisions of this section are supplemental to all other rights and duties under law applicable in the event of a motor vehicle collision.”

As AVs are introduced onto our roadways, the regulatory framework will surely expand significantly. There will be a need to develop driver training requirements, equipment testing protocols, cyber security protocols, and limitations on where AVs are permitted to operate. The regulatory environment will also likely be greatly influenced by the number of and type of accidents involving these vehicles as well as the litigation that follows.

D.        Liability Issues Related to AVs

Even at this early stage of AV development, there have been a handful of lawsuits and at least ten deaths stemming from AV accidents.[7] Lacking a comprehensive regulatory framework, traditional state tort and warranty rules will typically govern civil liability arising out of AV accidents. However, liability issues in motor vehicle accidents will become significantly more complex.

For instance, drivers are typically the only defendants in motor vehicle accident cases, absent the occasional matter involving alleged mechanical failure (e.g., claims for product liability and/or negligent repair).[8] With the introduction of AVs, a claimant can no longer merely assume the accident was the result of a negligent driver. There may be a need to apportion liability between the driver, manufacturer, various suppliers, and the seller. This will heighten the need for a comprehensive post-accident inspection, including the collection of data concerning whether or not the vehicle was fully automated at the time of the accident and whether it was properly maintained, including updated software.

Even assuming a vehicle was fully automated at the time of an accident, there may be considerations of whether the circumstances required a “reasonable” human driver to take back control of the vehicle. The potential allocation of fault to the driver could become a hot-button issue that involves the competing interests of insurance carriers and motor vehicle manufacturers, who are most often self-insured. It would not be surprising, however, for strict liability to be implemented against motor vehicle manufacturers for accidents occurring when a vehicle was fully automated.

While driver liability will be greatly mitigated by AV technology, automobile manufacturers will have increased exposure (regardless of whether or not strict liability applies). As such, manufacturers need to be prepared for a substantial increase in litigation beyond the typical lemon law/breach of warranty cases. Potential manufacturer defenses in AV litigation will likely include the following:
 

1. Denying the existence of a defect.
2. Allocating fault to parts manufacturers.
3. Claiming the accident was unavoidable.
4. Assigning liability to the driver and/or injured party.

Another interesting issue posed by the introduction of AVs, is the handling of traffic citations. Assuming the technology works as designed, these vehicles should, for the most part, abide by the rules of the road. However, in the rare event a vehicle fails to recognize the speed limit or a stop sign, there needs to be a determination of whether the citation goes to the manufacturer or to the owner of the vehicle. Local governments will also likely need to find an alternative revenue source as moving citations become a relic of the past.

E.        Conclusion

AVs have the potential to make our roads safer by eliminating human error. However, they also pose numerous legal and regulatory issues that will require creative solutions. As AVs are brought to market, the legal field will need to adjust to this rapidly advancing technology and the unique issues it presents.