Making It Easier and Safer: How Should The Civil Justice System Respond?
In 1968, Herbie was the star of a movie called The Love Bug.
Herbie was a fictionalized version of what the auto industry and the National Highway Traffic Safety Administration now call “autonomous” or “driverless vehicles”. Over the years, movie goers and TV audiences have laughed, cheered and marveled at similar cars in the Batman series, I Robot, the Minority Report and the Knight Rider TV series.
The very rapid expansion of computer programming has led to a steady introduction of collision avoidance technology (CAT), along with a host of questions about vehicle safety and legal implications. Associated with the industries embrace of these features has been a troubling drum beat suggesting that the industry needs to be protected from civil liability so that this technology can flourish without concern when a mistake materializes. Industry supporters laud the introduction of each new CAT feature, marketing these features as add-ons to enhance safety. Some consumer groups remain unsure of the effectiveness of these systems and they have warned that a rush to the market place could have dire consequences — the exact opposite of the intended purposes of the advent of CAT features. The history of the auto industry’s introduction of new features — remember the front airbag debacle of the mid-1990s when we witnessed the death of too many youngsters and short statured motorists because of the rush to equip vehicles with this technology — counsels that the civil justice system remain ever vigilant to the predictable harm associated with these computer systems.
To begin, the history of automotive safety and trends in fatalities and catastrophic injuries before and after the introduction of new features does not support the notion that “this time” new technology will eradicate the carnage on our highways. Recall that when the NHTSA promulgated a regulation requiring ABS brakes, the government and many consumer groups touted this advent as a panacea for safety. Nevertheless, retrospective studies have shown a marginal decrease in rear-end collisions attributable to ABS alone.
Over the past few years, the U.S. Department of Transportation, through its National Highway Traffic Safety Administration (NHTSA), has been struggling with its role as the regulatory agency Congress has tasked with responsibility for national highway safety laws and the safe marketing of motor vehicles. For a host of reasons, the NHTSA has decided not to issue any new regulations governing the safety performance of CAT features; instead, in September 2016, the NHTSA published what it has labelled the “Federal Automated Vehicle Policy”, which provides “guidance” rather than rulemaking, allowing manufacturers and each state to develop their own “best practices” in the development and production of “highly automated vehicles” (HAV). This laissez faire approach may create a boon to the industry and consumerism or it may produce a tidal wave of legal confusion and the sale of unsafe vehicles. While completely autonomous/robot-vehicles are years away from release, the government’s inability to develop safety performance regulations for any CAT feature has left consumers and manufacturers to their own devices.
To that end, here is a brief summary of the primary CAT features now available in the market place and some legal commentary about the need for continuing access to the civil justice system if and when injury results because of the marketing practices of the industry or the failure of this technology.
An autonomous vehicle is defined as one that is capable of sensing its environment and navigating without human input. Here is a list of current CAT included or available on some vehicles today:
Automatic Emergency Braking with Collision Warning:
An AEB is designed to reduce the likelihood and severity of a frontal collision. Depending on the programming of the system, there may be three levels of action. In stage 1, visual and audible warnings are initiated; in stage 2, additional visual and audible warnings are provide and some automatic brake application occurs; in stage 3 in addition to the same type warnings, a strong brake application occurs.
Each vehicle will use some combination of radar, lasers, and forward-looking cameras to monitor the road ahead, measuring the distance to any obstacle in the vehicle’s path. That technology already exists and has been used for following distance warnings and collision alarms, as well as for adaptive cruise control that follows the speed of traffic.
Not all current AEBs are designed alike. The AAA has recently reported on a study it conducted with several vehicles equipped with a form of AEB, and it found that:
With speed differentials of under 30 mph, systems designed to prevent crashes successfully avoided collisions in 60 percent of test scenarios.
When traveling at 45 mph and approaching a static vehicle, the systems designed to prevent crashes reduced speeds by 74 percent overall and avoided crashes in 40 percent of scenarios. In contrast, systems designed to lessen crash severity were only able to reduce vehicle speed by 9 percent overall.
Lane Control and Lane Departure:
The most common Lane Departure Warning (LDW) employs a simple camera mounted high up in the windshield, often as part of the rear view mirror mounting block. It captures a moving view of the road ahead. The digitized image is parsed for straight or dashed lines — the lane markings. As the car deviates from the center of its travel lane and approaches or reaches the lane marking, the driver gets a warning: a visual alert plus either an audible tone, a vibration in the steering wheel, or a vibration in the seat. If the turn signal is on, the car assumes the driver is intentionally crossing over the lane, and there’s no alert. That’s lane departure warning.
A second system is called lane control assist. When the car reaches the lane marking, the car nudges itself away from the marker. Sometimes the steering change is effected by braking the opposite front wheel and the car pivots back into the lane.
Blind Spot Assist
The system recognizes when another vehicle is traveling diagonally behind the driver’s car and signals the presence of the vehicle using indicators in the vehicle. These indicators are often found on either the side view mirror or the A-pillar (the part of the car body separating the door window and the windscreen). The driver is alerted to the presence of the other vehicle by the flashing indicator and an audible signal.
The vehicle will be programmed to steer, brake, accelerate, read road signs, and even leave the flow of traffic and come to a safe stop if the driver is detected to be incapacitated. Discretion over when and where to activate the Autopilot function will be left to the driver.
How Should The Civil Justice System Respond To CAT And Questions That Will Arise When Harm Occurs?
Historically, some lobbyists, legislators and regulators have questioned the propriety of allowing our civil justice system to serve as a barometer to measure the safety of new products or new safety systems. In that regard, civil liability for the marketing of poorly designed products has occasionally been thwarted or limited by preemptive statutes or regulatory enactment. Examples include (1) FDA approval of certain medical devices and (2) NHTSA regulations authorizing the scheduled introduction of front airbags in motor vehicles. However, the contemporary approach to the regulation of motor vehicle safety has been to reject preemption and allow the civil justice system, rather than NHTSA, to provide both incentive and judgment of the safety of flaws in a new product’s performance. That approach continues to make sense for a host of reasons, some of which were identified by the Center for Progressive Reform in its White Paper, entitled The Truth about Torts: Regulatory Preemption at the National Highway Traffic Safety Administration:
The preemption of state tort suits in the field of automotive safety presents a serious risk to the public. Federal safety standards often do not adequately prevent injuries or protect passengers when collisions occur….
* * *
…[T]he development of federal safety standards can be a torturously slow process. Informational demands, changes in agency political dynamics, and resource constraints are all factors that delay the implementation of new safety standards. In the meantime, vehicle safety technology continues to improve. Yet implementation of the new technology is not as widespread as it could or should be because NHTSA’s safety mandates are so slow to develop.
In this age of rapid advances in technology, it’s vital that we cautiously adjust our perspective about “robotic” advances in vehicle technology. In I Robot, remember these passages as Will Smith’s character takes charge of his autonomous car:
NS5 Robots: “You are experiencing a car accident”.
Detective Del Spooner: “The hell I am!”
* * *
Lt. John Bergin: What is the matter with you? Traffic Ops tells me you’re driving your car manually. You ran two trucks off the road!
Detective Del Spooner: John, the robots attacked my car.
Lt. John Bergin: What robots?
Detective Del Spooner: Look in the tunnel.
Lt. John Bergin: I just came from that tunnel. There are no – What robots?
Detective Del Spooner: [shouting] The goddamn robots, John!
It would be a grave mistake to provide any type of immunity to vehicle manufacturers for the introduction of CAT features despite their efforts to develop technology to improve upon safety on our highways. Why? Simplistically, it’s because human behavior, whether it’s individual or corporate, requires controls to provide motivation to resist the temptation to ignore or gamble with inherent risks associated with product change. The civil justice system provides a well-tested means to channel corporate behavior to cautiously account for and eliminate product risks which outweigh associated benefits. And, absent the fear of compensatory punishment, some of the motivation to do the right thing will be lost. It’s the jury system that stands in the path of unfettered corporate misconduct—with the threat of financial sanction if the rules are breached—which tempers reckless or unsafe product change. The tort system continues to motivate manufacturers to “do the right thing” and just as importantly it offers injured consumers a chance for recompense when the “right thing” isn’t obtained.
While there may be distinctions between legal and moral responsibility, in gauging the need to hold manufacturers responsible for harm caused by new technology, its best to follow their interrelationship. The interrelationship of moral and legal responsibility dictates that our civil justice system remains vigilant to provide accountability, liability, blameworthiness and causality if and when injury coalesces with avoidable consequences caused by CAT. Increasingly complex technologies can exacerbate the difficulty of identifying who or what is ‘responsible’. However, any difficulty in establishing a link between harm and a computer driven behavior or response, cannot provide the product manufacturer a free pass. As CAT becomes more standard in vehicles, drivers and their computer assisted vehicles will act in concert and share operating responsibilities. And, while these shared responsibilities will in retrospective—when something goes wrong—make it more challenging to ascribe responsibility, that’s not justification for product liability immunity. In fact, the opposite is much more persuasive: when machine and “man” combine to cause harm, each must be held accountable.
For many situations in which issues of responsibility arise, accountability and liability are strongly intertwined. When there are multiple actors whose conduct leads to harm, our civil justice system provides for causal accountability. A good system of liability offers a solution because it addresses the needs of victim. The Ford Pinto case provides an example. When Ford executives considered various options for the design of the Pinto, they focused on compliance with a minimum federal standard and ignored real-world usage and consequences. Evidence demonstrated that a warped balance was reached between minimal safety and the risk of harm. And, it was only after the civil justice system stepped in that design safety changes were made. Learning from this type of mistake dictates that the jury system remains available to both compensate and motivate the auto industry to develop appropriate safeguards so that new technologies provide benefits without risk.
This article was written by Larry E. Coben, a shareholder at Anapol Weiss.
i Nishida, Y., The Effect of ABS As A Preventive Safety Device: the Result of Statistical Analysis, Proceedings of the 21st International Technical Conference on the Enhanced Safety of Vehicles Conference, 2009.
ii Riegel v. Medronic, 552 U.S. 312 (2008).
iii Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000).
iv Examples include: Executive Orders 12988 and 13132 which instructed NHTSA that in issuing new or amended regulations to only consider the preemption of state law if the Congress has provided clear evidence it intended to do so. Thus, in several recent changes to FMVSS the Agency has specifically noted that its regulatory action is not preemptive of the common law. See, 72 Fed. Reg. 5385, 5397 (2007)(door lock standard); 72 Fed. Reg. 17236, 17301 (2007)(electronic stability control systems).
vi It’s equally important to remember that the tort system places the blame and financial responsibility for injury on the wrong-doer and it shifts the burden of the expense of injury from the victim or the government agency that must otherwise pay for the cost of care to the wrong-doer.