Driverless Car Litigation: The World of George Jetson Has Arrived

Imagine beginning your day with a cup of coffee in the car on the way to work, watching the morning news from a holographic projection on the windshield while making notes in preparation for a 9:00 a.m. meeting. All this while your car follows a preset route, automatically changes lanes to avoid slower vehicles, after having driven your children to school. Your vehicle’s information system reminds you of your day’s agenda and turns on the crockpot at home while the car looks for a best place to park. After the car parks itself, you leave it without locking it with a key – the car will unlock itself when sensing your biometric identification around, and will even pull around and pick you up in front of your office.

“The future starts today, not tomorrow,” Pope John Paul II famously said. He was right. Driverless cars – more appropriately known as “autonomous vehicles” – are here. For most of us, driverless cars were something only seen in cartoons like “The Jetsons” – no longer. Mercedes-Benz recently introduced the 2017 E-Class Sedan at the 2016 North American International Auto Show. It boasts features that would be the envy of George Jetson, with autonomous-driving capabilities that let a car go farther on its own before the driver takes over and stays on track on curvier roads. Trial lawyers are licking their chops and subrogation professionals should be right there alongside them.

The new mid-size Mercedes features innovative dual front-facing cameras which create a 3D image map of hazards up to 55 yards in front of the vehicle, while adaptive cruise control can now keep pace with the car ahead now at speeds up to 130 mph. It gives a whole new meaning to the excuse, “I was just keeping up with traffic.” The 2017 Mercedes-Benz E-Class will be available for the first time in the U.S. this summer. Engineers in Stuttgart, Germany have raised the bar once again. But, they have also raised the eyebrows of tort lawyers who foresee a number of problems that could lead to a new brand of lawsuits. While most car crashes result in litigation based in negligence (i.e., operator error), this new innovation in automotive engineering will likely see common auto accident cases being based in design and/or manufacturing defect product liability litigation.

The features available on the new E-Class, some of which are standard, some requiring the Driver Assistance Package, are more the stuff of H.G. Wells than Gottlieb Daimler. They include:

• Drive Pilot‘s adaptive cruise control (Distronic) and Steering Pilot (lane keep assist) track the car in front at speeds up to 130 mph (210 kph) and can stay lane-centered at up to 81 mph (130 kph). It tracks nearby vehicles and senses highway lane markings.
• Active Lane Change Assist is a radar- and camera-based system that semi-automates lane changes. Flip the directional signal and the car waits two seconds and then changes lanes on its own.
• Active Brake Assist with cross-traffic function similarly has “extended speed thresholds” for detecting cars and pedestrians. The car brakes if it detects crossing traffic that you aren’t slowing for and will initiate advance braking if it senses you’ve come upon the tail end of traffic jam, where there’s no room to maneuver.
• Evasive Steering Assist works with pedestrian detection to help the driver steer around a pedestrian and then apply steering wheel torque (force) to recover and get the straightened out afterwards.
• Active Blind Spot Assist (blind spot detection), in addition to highway speed warning, can warn of possible city-speed lateral (side) collisions.
• Pre-Safe Sound emits a sharp “interference signal” through the sound system if it detects an impending collision. It triggers a biological reflex in the human ear that prepares the occupants for the sound of the collision if it happens.
• Remote Parking Pilot pulls the car out of a garage or parking space using a smartphone app, with the driver outside. This lets big cars park in narrow spaces and tiny garages.
• Car-to-X communication is the first car with integral car-to-X, meaning car-to-anything communications where a connected car ahead helps cars behind “see” around corners or through obstacles.

Admittedly, the Drive Pilot will be used primarily on highways and country roads. The new Mercedes-Benz E-Class technically doesn’t “drive itself”, but it sure seems like it. The new technology promises a future where computers drive cars, rather than humans, eliminating error and reducing accidents and injuries exponentially. Between now and then, however, we will have a prolonged “trial” period where these “self-driving” cars interact with and attempt to anticipate the foible of human negligence.

Mercedes-Benz’s Distronic Plus system operates by using radar sensors that scans traffic for stopped or slowing traffic. If the system senses that a collision is imminent, its PRE-SAFE Brake feature automatically initiates up to 40 percent braking power, audibly alerts the driver, and engages the PRE-SAFE system. When the driver brakes, 100 percent braking pressure is instantly applied. If the driver fails to respond, the system can apply full braking on its own, serving as an “electronic crumple zone” to help reduce the intensity of a collision. An April 2012 Highway Loss Data Institute (HLDI) Bulletin credited Distronic Plus with a 14 percent reduction in property damage claims. Vehicle-to-vehicle (V2V) communication technology will allow your car to continually download information uploaded from other “intelligent” vehicles from the Cloud, informing it of slow-downs and accidents which are unseen to the human eye around the corner or over a hill.

Motor vehicle accidents claimed over 33,000 lives in 2012 and have proven to be a very lucrative source of business for trial lawyers and subrogation professionals. More than 90 fatalities every day testify to the simple fact that humans make mistakes. All too often they fall asleep, text while driving, drive while intoxicated or under the influence, look away from the roadway, lean down to pick up things off the floorboard, rummage through their purses, put on makeup while driving, and, by and large, use poor judgment. Vehicle automation in the form of anti-lock brakes, airbags, and other passive safety features, has been helping save lives for years. This isn’t the first time the auto industry has declared “The future is here.” A brochure for 1958 Chryslers and Imperials touted a new feature called “Auto-Pilot,” which was advertised as “an amazing new device that helps you maintain a constant speed and warns you of excessive speed.”

Autonomous driving means another growth period involving the uncomfortable interface between computer-driven vehicles and older models driven by potential tortfeasors. In the horse and buggy era, as the number of vehicles increased, the rate of deaths and injuries caused by vehicular accidents rose tremendously. By 1917, Detroit had 65,000 cars on the road, resulting in 7,171 accidents and 168 fatalities.

Lawyers are trained to look at a tragedy and think, “how could this have been prevented?” When they have their answer, they draft their complaint. With so many moving parts and unproven technology, the answer to the lawyers’ question when an autonomous vehicle is involved will often lead them to blame the product, rather than the driver. Legislatures, in an effort to encourage the new technology, may well pass tort reform measures protecting the manufacturers of autonomous cars.

Strict product liability law provides the legal remedy when a defective product (defect in design or manufacture) causes damage, injury, or death. Product manufacturers have a legal duty to carefully design their products in a way that reasonably foresees risks of injury to those using their product reasonably. If little or no driver interaction is required with driverless cars, a myriad of conditions or combination of conditions could combine to cause an accident – even if it involves a foreseeable human operator panicking and interfering with the vehicle’s automation. Consumers may even begin to rely too much on these early autonomous vehicles, leading to collisions resulting from inattentiveness.

The number of theories of legal liability available to trial lawyers and subrogated insurance carriers increases exponentially as the technology of these new “self-driving” cars grows. It will require thinking outside of the box. Claims professionals will need to become familiar with the technology involved and develop a relationship with qualified automotive experts. As H.G. Wells famously said, “Adapt or perish, now as ever, is nature’s inexorable imperative.”