Regardless of which field you work in, almost every attorney is familiar with the core aspects of a car crash case. Imagine someone is driving down the road, he or she behaves negligently in some way, crashes the car into someone else, and causes damage to that other person or car. The responsible driver is held accountable for his or her negligence. It seems trite to rehash something so obvious, but there is a real possibility that we could be in the early stages of an entirely different approach to establishing culpability in car wrecks.
Driverless cars are still more of a gimmick than a mode of transportation, but the obvious potential of having a “perfect” automated driver is too compelling to ignore. However, the arrival of the driverless car has major potential ramifications with regard to both our legal and ethical systems.
Currently, it is a no-brainer that the negligent driver is responsible for his actions and will be liable for whatever damages result. However, as driverless cars become more and more prevalent, the individual in the driver seat won’t be responsible. It will be the auto manufacturer or the tech company that designed the system which steers the car. This will surely spur a new round of product liability cases against the companies, but will also eliminate many of the standard personal injury auto wreck cases.
As humans, we can take many factors into account in a heartbeat when we are driving. It is not clear that a driverless car will be able to consider all the different factors that we value as individuals and to make the “right decision.” As an example, imagine a driverless car heading down a two-lane road when a child jumps out into the street chasing a ball. The car should stop, right? But if the driverless car stops and a school bus is behind it, there may be many more children killed when the bus crashes into the driverless car. Maybe the car should swerve into oncoming traffic, but, if it does, it will intentionally crash headfirst into another innocent victim. Who should it decide to kill?
Obviously, none of these choices are good. If a human driver had been involved, we could empathize with the difficulty of being caught in a very unique situation. However, with a driverless car, that decision will necessarily be made by executives sitting in a boardroom well before any tragedy unfolds. Without the ability to make decisions in the moment, those executives will be forced to work with “cold metrics” and, when they are inevitably sued, our legal system will be forced to come up with an answer. Making that decision in a boardroom may require people to focus on static criteria. Real-life affords us no such certainty. Driverless cars will have to apply those same criteria in the very uncertain real world and the public will have to deal with the consequences.
While there is no case law on precisely this point, because we do not have fully automated cars driving around, without a human who can make a final decision, there is an analogous case currently pending in federal court. The Boeing 737 Max plane crashes have made worldwide headlines, causing hundreds of deaths based on what is essentially an automated error. Def.’s Answer and Affirm. Defense, In re: Lion Air Flight JT 610 Crash, 1:18-cv-07686 (N.D. Ill. May 23, 2019) ECF No. 145. These are the types of errors that will become more prevalent as more automated vehicles enter the public arena. Similar to the expected suits against driverless car manufacturers, the plaintiffs in the In re: Lion Air Flight JT 610 Crash case are focused on the design of the program. However, unlike the driverless car example, there would be no imminent harm in not crashing the plane. Perhaps because of that, Boeing has admitted that it has reached out to the families of the people who died in the crash about settlement negotiations, hoping to avoid the litigation process.
In the case of driverless cars, victims may be forced to go through the litigation process and argue why the car should have decided to harm someone other than themselves. It is easy to empathize with the family of someone killed in a crash like that who feel like their loved one should have been spared, even at the expense of someone else. Society will be forced to make the determination of who should be saved and who will not be, and currently, our society makes that type of decision through our judicial system, whether that is the best forum to decide it or not.