Self-driving ("autonomous") automobiles hold great promise to make our roads safer and to corresponding lead to substantial reductions in insurance claims and litigation. However, as made clear by a fatality accident earlier this week in Tempe, Arizona, autonomous vehicle technology will not eliminate all collisions, and it will undoubtedly give rise to many new and challenging legal issues.

The Arizona accident involved a self-driving Volvo engaged in road testing for Uber. The vehicle struck and killed a 49-year old pedestrian as she walked her bicycle across a street mid-block. The test vehicle was reportedly traveling a few miles per hour over the speed limit. The vehicle had a backup driver, but was in full autonomous mode at the time of the accident. Tempe’s police chief told reporters that it appears the accident was not the "fault" of the Uber vehicle or its backup driver but, rather, resulted from the pedestrian stepping suddenly into the lane of traffic.  Nevertheless, Uber immediately suspended its autonomous road testing program and the US National Traffic Safety Board (NTSB) sent a team to Tempe to investigate.

The Arizona fatality is the first involving an autonomous test vehicle, but not the first involving self-driving technology. The driver of a Tesla Model S was killed in 2016 when his car, operating on its Autopilot system, crashed into a tractor-trailer in Florida. The NTSB said that the Tesla driver’s inattention was primarily to blame, but that design limitations with the system also played a major role in the crash.In January 2018, another Tesla being driven on "Autopilot" rear-ended a parked fire truck as it attended an accident on a California freeway.

Arizona is not the only state with driverless vehicles being tested on roadways. In February 2018, California's Office of Administrative Law issued new regulations allowing autonomous vehicle testing on the state's roadways commencing in April 2018 including testing with no backup driver behind the wheel. (

As autonomous vehicles become more commonplace so, inevitably, will litigation arising from accidents involving them. We expect that product liability claims will predominate over negligence based claims, as the passengers in a fully autonomous vehicle may be found to have a limited, or no, duty of care to other drivers and pedestrians. Such products claims will likely call out design and manufacturing flaws in the vehicles’ software, guidance, or sensory / optical equipment that allow the vehicles to perceive and quickly respond to hazards. That said, courts or legislatures may also see fit to affix the owners of autonomous vehicles with some form of vicarious or strict liability for injuries determined to have been caused by defects in their vehicles. This would serve as an extension of laws currently in place that impose varying degrees of liability on vehicle owners who lease, lend or entrust their vehicles to others, or who suffer the theft of a vehicle which is subsequently involved in an accident.

Insurance follows liability and, as such, it appears that the automobile liability insurance system, as we know it, will remain largely in place for at least a generation, as autonomous vehicles begin to replace driver controlled models. That said, once driverless vehicles become ubiquitous and the overwhelming majority of riders are committed to the same technology, it may make little sense for a passenger/owner of one driverless vehicle to sue the passenger/owner of another such vehicle, where both vehicles employ the same technology-- which should have prevented (but did not prevent) an accident between the vehicles.  At that point, a no-fault insurance scheme, perhaps funded by the purveyors of the autonomous transportation industry, may become the most practical solution to deal with injuries that will inevitably result from the full scale adoption of this technology.

It's worth noting that driverless technology will not only affect passenger vehicles.  It will also transform the trucking and public transport sectors. Tesla has already announced plans to road test autonomous trucks which may travel our freeways in "packs" led by a human-driven vehicle within the next five years. Again, we expect to see and deal with a variety of legal challenges arising from the use of self-driving vehicles in heavy transport, including commercial, regulatory, insurance and EPL issues that will arise from industry disruptions.

As one of the leading litigation and insurance firms in the nation, WSHB is fully committed to providing its clients informed advice, as the landscape of transportation litigation and insurance evolves. Our firm's deep bench of litigators, insurance attorneys and specialists in related legal disciplines are at the cutting edge legal developments not just in transportation, but also in healthcare, manufacturing, energy and construction.

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