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The Robotic Revolution – Are Autonomous Vehicles an Escape from Accountability?

Published: 05/24/2017

By Stefanie Holland

“Through an examination of technical, social and legal histories. … researchers have pointed to ways in which automation does not eliminate human error, but rather creates new and unexpected errors.”1

Autonomous vehicles (AVs) are quickly transforming the auto industry. One of the main issues with this innovation is the question of accountability. If an AV crashes, who is liable? The human, even if they are not driving? The car manufacturer? Can an AV get a speeding ticket? Can a passenger get a DUI if the vehicle is in AV mode? These are all questions pointing to the issue of legal liability, the answers to which hold a particular interest for lawyers. 

Back to the Basics - What are Autonomous Vehicles?

AVs are driverless or self-driving vehicles that are capable of detecting the surrounding environment using artificial intelligence, sensors and global positioning system coordinates. Section 1(2) of Ontario Regulation 306/152, which came into force on January 1, 2016, defines the various levels of automation in an AV as follows:

Level 0 – No automation;
Level 1 – Driver assistance;
Level 2 – Partial automation;
Level 3 – Conditional automation;
Level 4 – High automation; and
Level 5 – Full automation.

Possible Shifts in Liability

Traditionally, a driver can be held liable for the negligent use or operation of a vehicle and a failure to maintain the vehicle.  So long as the driver is able to assume or resume control of the vehicle, it would appear that there would be a continuing basis for driver negligence and liability as they currently exist according to the common law.  However, for AVs that are fully autonomous, this may not be the case. Legislative amendments may be required in order to clarify whether the owner is vicariously liable and in what circumstances. 

A manufacturer can also be found liable for design defects, misrepresentation and a failure to warn consumers of the risks associated with the reasonable use of their vehicles. The concern that AVs are going to lead to greater liability for car manufacturers is very real because manufacturers have the greatest knowledge and control over its AV systems.

Recent fatalities involving AVs have demonstrated challenges with establishing legal liability. In January 2016, Gao Yanin died when his Model S Tesla reportedly hit a truck on a highway in the Chinese city of Handan at a great speed, with no apparent attempt at braking. Tesla stated that the damage to the car was so great that the company could not determine whether the autopilot was engaged at the time of the crash. Chinese authorities concluded that the crash was the result of driver error.3  Just a few months later, in May 2016, Joshua Brown of Canton, Ohio, was killed when his Tesla Model S crashed into a tractor-trailer at 74 miles per hour.  Tesla stated that the autopilot may have failed to detect the white truck against the bright sky.4

These incidents illustrate that AV-related accidents are going to raise challenging evidentiary, as well as liability, issues for courts to decide.

Protection of Privacy and Cybersecurity

AVs also pose significant challenges with respect to data security. They are designed to share and collect information from a wide variety of sources, including connected vehicles, devices belonging to drivers and passengers and surrounding infrastructure. In an age focused so heavily on cybersecurity, concerns over breaches of access to and control over the vehicle’s autonomous system will be a concern to both consumers and manufacturers, giving rise to obligations pursuant to the Personal Information Protection and Electronic Documents Act.5

Regulatory Framework in the US and Canada

In September 2016, the U.S. Department of Transportation issued the Federal Automated Vehicles Policy,6 which sets out expectations for manufacturers developing AVs and discusses new tools the government may need as the technology evolves and is deployed more widely. In November 2016, the Transportation Minister of Ontario announced that AVs were hitting Ontario streets, after the province became the first in Canada to open a pilot project to test AVs on public roads.7 Led by the University of Waterloo, this pilot project is restricted to testing purposes only and will run for 10 years, including interim evaluations.All test AVs must comply with Canada’s current Highway Traffic Act and Motor Vehicle Safety Act.

Implications for the World at Large

With the innovation of AVs comes both opportunities and challenges to various industry sectors. The legal framework on which these sectors are based will have to anticipate, prepare for and adjust to such changes. One thing is for sure - regulatory guidance is required to protect the automobile industry, as well as the safety of drivers. Only then can the framework for future litigants be defined. But this is not new. Think about all the new vehicle technologies that have been developed in the 20th century that were once controversial and are now considered indispensable, such as seat belts, airbags, child seats, rear view cameras, vehicle data recorders and anti-lock brakes. Courts have continuously adapted to new technology over the ages, ensuring that new innovations, and the implementation of same, are safe. One can only predict that AVs will be no exception. 

1 M.C. Elish and Tim Hwang, Data Research Institute M.C. Elish and Tim Hwang, Praise the Machine! Punish the Human! Data & Society Research Institute, May 18, 2015, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2720477.
2 https://www.ontario.ca/laws/regulation/150306
3 https://www.nytimes.com/2016/09/15/business/fatal-tesla-crash-in-china-involved-autopilot-government-tv-says.html?_r=0
4 https://www.nytimes.com/2016/07/30/business/tesla-faults-teslas-brakes-but-not-autopilot-in-fatal-crash.html
5 SC 2000, c 5
6 https://www.transportation.gov/AV/federal-automated-vehicles-policy-september-2016
7 http://www.huffingtonpost.ca/2016/11/28/self-driving-cars-ontario-canada_n_13287038.html
8 http://www.mto.gov.on.ca/english/vehicles/automated-vehicles.shtml