No Driverless Revolution At The Expense Of Bicyclists And Pedestrians

Illustration by Adam R. Garcia

Apparently, driverless cars are right around the corner.  No longer the pipe dream of mad engineers in Silicon Valley, at least one manufacturer has promised that they will be here as early as this summer. 

Cars that drive themselves hold some appeal.  Imagine commuting to and from the 'burbs while reading a book or catching up on work, free from the constraints of holding a steering wheel and looking out of a windshield.  But what impact may driverless autos have on other road users, bicyclists and pedestrians?  As the technology proliferates we may see far fewer collisions as driver error is removed from the equation.  Mistake free driving may be just over the next hill, and lawyers like me may be out of a job.  (Please, hold your tears.)

But what if, as with most new technology, progress is bumpier than is presently envisioned?  Machines make mistakes.  What then?  How shall an bicyclist or pedestrian struck and injured by a car with no driver receive just recourse in the event of an accident?  In our present analogue world a person injured by a negligent driver may seek compensation directly from that driver, or their auto insurance provider.  The driver may or may not agree that he or she was negligent, but responsibility can generally be placed at the feet of either the driver or the injured person.  Sometimes there is fighting, finger pointing.  Litigation is sometimes necessary.  While there is some cost and work that goes along with that, it is usually not onerous.  But driverless cars may significantly alter the balance to the detriment of injury victims.  It is easy to imagine an occupant of a driverless car deflecting blame in the event of a crash to the manufacturer of the car.  "Wasn't me," they'll say.  "It was the machine."  At that point, the injured person is faced with the task of suing Tesla or Google or General Motors.  Good luck with that.

Product liability cases against manufacturers involve a lot more expense, time and complexity than do garden variety traffic crash cases.  Manufacturers should only be sued when the considerable risk and expense involved in doing so on one side is countered by very profound injury or death on the other.  A significant, but not usually life altering injury like say a broken limb may not justify suing a product manufacturer.  Lawyers often will not be able to economically justify taking such cases and, as a result, the vast majority of people injured in motor vehicle crashes would be out of luck.  Many would be left without a means for paying for a heap of medical bills and other expenses.

Legislators in each state should be prepared to prevent drivers and their auto insurers from rotely deflecting blame to the manufacturers of driverless cars in the event of a crash.  That need not be difficult.  Any time a driverless motor vehicle is involved in a crash causing bodily injury or death the owner of that vehicle should bear the burden of proving by clear and convincing evidence that a third party, such as the manufacturer, acted negligently so as to be the sole cause of the injury or death. Without such evidence then the driver/auto insurer should be held financially responsible. Such a rule of law would not make the car owner liable in all cases.  It would, however, shift the burden, and all of the cost and complexity that goes with it, onto the car owner and their insurance company to proving the car manufacturer's responsibility rather than onto the injured victim.  This, it seems to me, is the way it should be.  For one, this rule would encourage "drivers" of driverless cars to pay attention to what is happening around them;  to act as a fail safe back up for the machine.  If these vehicles work the way they are supposed to, they should be involved in few crashes anyway.  Secondly, it would make sure that recourse remains available for all injury victims.  If the car was defective in some way and malfunctioned it should be the vehicle's owner or their insurer that foots the bill for proving that the manufacturer was negligent.  Nothing in this proposal would prevent an injury victim from suing a manufacturer under legal theories presently available for doing so.  In cases with very profound consequences for the victim and their families that will sometimes be necessary.  But it would not always be required.