Self-driving technology and autonomous vehicles: a whole new world for potential product liability discussion.

• Author: Cohen, Roy Alan

This article originally appeared in the May 2015 Product Liability Committee newsletter.

AS remarkable as it seems, the concept of self-driving cars and associated technology is moving from science fiction to reality in our lifetime. The acceleration of technology in this area and the ability to apply these scientific and engineering advances to practical applications are creating advances in transportation that will change the way people live their lives and how civilization does business. It is yet unclear whether these advances will match the giant leaps forward created by airplanes, cars, and computer technology. However, whether it be electric-powered cars or autonomous vehicles, there seems little doubt that how we travel will change in the near future. With these technological advances, legal questions are sure to follow, and so it seems that these advances will keep product liability lawyers busy for as many years as the products took to develop. This article can only scratch the surface, but the discussion is a fascinating blend of classic product liability and proximate cause issues as they relate to an area populated by new products, components, hardware, software, and related technology.

1. Background

   For those of us with undiminished long-term memory, the 1964 World's Fair in Flushing Meadows, New York was a first look at the future for autonomous vehicles. The General Motors Pavilion, called Futurama II, featured automated highways and self-driving cars. Interestingly enough, the exhibits built on concepts depicted at the GM Futurama exhibition at the 1939 World's Fair in New York, which featured self driving cars and automated highways. Many recall that the Central Power and Light Company launched an advertising campaign in newspapers and magazines in the mid-1950s predicting automated travel with an interesting depiction of a family playing a board game in an electric automated car traveling on a highway. In August 1961, Popular Science Magazine reported on the Aeromobile 35B, an air-cushioned personal self-driving hovering car; for those of us infatuated at the time by the favorite cartoon series, The Jetsons, it was a dream come true. During the 1960s, the United Kingdom's Transport and Road Research Laboratory tested a driverless vehicle that could reliably drive 80 mph over magnetic cables buried under the road. During the 1960s and 1970s, Bendix Corporation developed and tested similar driverless cars that utilized buried cables and computers. (1) This was the stuff of science fiction and super heroes for kids like me, and technology has developed from there.

   As we know, technology development has already resulted in advanced cruise control, vehicles with self-parking capability, sensor-initiated braking, all manner of early warnings to a driver for pedestrians and other vehicles in driving and parking situations, but most of this technology is still tied to a human operator. These technologies enhance the driving experience and improve accident and injury avoidance, but, for the most part, these advances do not replace the driver. Current self-driving concept vehicles using the Google technology are being tested continuously on California roads. As of August 28, 2014, it was reported that the latest prototype had not been tested in heavy rain or snow due to safety concerns, and since the cars rely primarily on preprogrammed route data, they do not obey temporary traffic lights and, in some situations, revert to a slower mode in complex unmapped intersections. The vehicle was reported to have difficulty identifying when objects, such as trash and light debris, are harmless, causing the vehicle to veer unnecessarily. Additionally, the Lidar technology cannot spot some potholes or discern when humans, such as a police officer, are signaling the car to stop. Google projects having these issues fixed by 2020. (2)

   In early 2014, IHS Automotive released a study, entitled "Emerging Technologies: Autonomous Cars--Not If, But When," which projects a global total of "nearly 54 million" self-driving cars by 2035, and predicts that "nearly all of the vehicles in use are likely to be self-driving cars or self-driving commercial vehicles sometime after 2050." (3)

   Much has been written on the benefits of self-driving vehicles from the standpoint of better design, improved safety, and increased capacity on highways, and savings and efficiency to infrastructure...