Driverless Cars Have Come to Virginia: Considerations for Automated Vehicles

How does the law apportion responsibility when someone is injured by an automated machine?  In the past, this question has come before courts only rarely, and in the context of accidents involving elevators or airplane autopilots.  In the near future, however, as automated road vehicles enter the marketplace, this issue will become increasingly prevalent in Virginia and throughout the country.

An automated vehicle is able to perform some or all of the functions of a driver.  The Commonwealth has already taken numerous steps to promote their introduction on its roads.  Virginia Tech recently founded the Center for Automated Vehicle Systems, which in 2014 was the recipient of a $55 million federal grant.  In 2012, the Virginia Department of Motor Vehicles established the Non-Conventional Vehicles Study, which is working with the automobile industry to ensure that there are no legal barriers to the testing of automated vehicles in Virginia.  Most recently, in June of 2015 Virginia opened up 70 miles of its highways to the road testing of automated vehicles.

A degree of automation in road vehicles is nothing new.  The first cruise control devices in cars were developed in the early 1900s, and many vehicles today feature its modern cousin, adaptive cruise control.  In 2012 the federal government began mandating that all new vehicles come equipped with electronic stability control, a computerized system that counteracts slipping wheels by automatically applying brakes.  The purpose of these and related features is to make vehicles safer.  While they have been successful, there is still room for progress.  Traffic accidents in the United States result in approximately 33,000 deaths and an economic loss of $871 billion each year.

Most of today's vehicle accidents involve human error.  Courts are charged with determining whether the drivers involved acted unreasonably and were therefore negligent, and then they assign liability accordingly.  This relatively straightforward scenario will become less common as the functions of human drivers are replaced with automation, because only humans can be found to be negligent.  Simple negligence must be augmented by a new scheme for determining liability, and that is likely to involve products liability.   The law of products liability allows courts to determine whether an injury to person or property occurred because a product was negligently manufactured or designed.  Products liability is already used by courts to determine whether an automobile accident was caused because of a negligently designed or manufactured mechanical system, such as defective brakes.  It is logical to expect that courts will turn to products liability to determine whether a design or manufacturing defect in an automated system was responsible for an accident.

Virginia courts will face a number of challenges as they expand the role of products liability law in automobile cases.  One of the primary challenges will be the issue of who to hold responsible in an accident: the driver or the manufacturer.  Unlike traditional accidents – where each vehicle unquestionably has only one driver – accidents involving automated vehicles will involve two entities with executive function: the human driver/operator, who must set the vehicle in motion and provide its operating parameters, and the vehicle itself.  Therefore, virtually every time an automated vehicle is involved in an accident, there will be two proper defendants: the driver and the manufacturer, either or both of which could be responsible for taking one or more actions that led to an accident.  In this new reality, it may be appropriate for Virginia's doctrine of joint and several liability, in which each defendant is held equally responsible, regardless of his degree of fault, to give way to a system where liability is apportioned according to the comparative fault of the manufacturer and the driver.

A second important consideration concerns the post-sale duty to warn.  Currently, Virginia does not recognize any duty of a manufacturer to provide a warning to its customer of a defect it becomes aware of after that customer has purchased the product.  This doctrine arguably should be changed in order to make automated vehicles palatable to consumers in Virginia.  Automated vehicles will run on software.  As all consumers of software are aware, software requires upgrades to repair bugs and address security concerns.  Consumers would be unlikely to entrust a software-driven vehicle to transport them with the knowledge that the manufacturer has no duty to fix known errors in its programming or alert them to required upgrades.  Furthermore, the current doctrine reflects an older reality in which it was very difficult to track a customer and inform her of a product defect, whereas now an upgrade may be accomplished remotely with direct communication from the manufacturer to the automated vehicle itself.

These are just some of the many issues that Virginia will grapple with in the near future as automated vehicles are introduced to the roads of the Commonwealth.  Many more are sure to join them.  It will be up to the courts and the legislature to ensure that the law is able to successfully adapt to this challenge.