The Google Car has been heralded as the future of automobiles; an autonomous, driverless car that combines our love of technology with our endless desire for mobility.
The so-called “Google Car” is a Toyota Prius outfitted with data-recording cameras that has already traveled more than 140,000 miles, in a variety of real world conditions without an accident. Well, there was that one.
A driver rear ended a Google Car while it was stopped at a red light, according to The New York Times piece that broke the story. While a technician sits behind the wheel, it’s the car’s programming that does most of the driving with only occasional human adjustments, as needed.
There are many potential benefits from cars that drive themselves, such as tuning the engine to coast as efficiently possible, increasing the capacity of existing roads and the unassailable fact that machines don’t get tired, they don’t get drunk and they don’t get distracted. But they’re still machines. Even a reliability rate of 99.99 percent means that an accident is bound to happen at some point. And this means that somebody’s gonna get sued.
Whether it is a Google Car or one of the driverless vehicles currently being developed by scientists at universities and labs around the country, an autonomous vehicle on a crowded street is heading right into a legal minefield. If a driver or pedestrian is injured or killed by a poorly functioning Google Car, who will be at fault?
“The question becomes, who is the ‘driver’ in a driverless car situation?” says attorney Scott Lovernick.
Lovernick is the San Francisco-based founder of Bicycle Defender, a personal injury law firm that provides aggressive representation for injured bicyclists. Lovernick is registered with the Bar Association of California and New York and has been practicing personal injury law for the past eight years.
“My understanding is that in Google’s driverless vehicles, there is still a person who can intervene and override the automated system much like in a cruise-control situation,” says Lovernick. “Ultimately, the question becomes what could that person have done to step in to take control? If there the person stepped in, would that have avoided the accident?”
“The California legislature never contemplated driverless vehicles when drafting the current laws. The California Vehicle specifically refers to “persons” or “drivers” of vehicles. For example, section 21950(a) states: ‘The driver [emphasis of the speaker] of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. If you or I were driving a car and violated this section, liability would fall on us.”
The Google Car is far not the first driverless vehicle to carry passengers. But its likely to be the first where existing laws must be reinterpreted.
Pod Cars of PRT are driverless cars that carry passengers along a designated track
For years, personal rapid transit (PRT), aka podcars, have been operating in a variety of cities and different conditions. Detroit, Miami, Jacksonville, FL and Irving, TX ahave PRT systems and so does West Virginia University. At London’s Heathrow Airport, a PRT system also began to operate recently.
What makes the Google Car different is the expectation that it will be driven in a variety of road conditions, instead of a separated track. But is there any software that can handle all the possible outcomes a real road could present?
“I think most people can’t compensate for all dangerous situations out there,” says programmer Zed Shaw.
During his graduate research into user interfaces, Shaw says he saw examples of driverless car technology stretching back as far as 2002, possibly earlier. However, the professors with whom he spoke said that no insurance companies would touch the vehicles for fear of being hounded by lawyers.
But even drivers with decades behind the wheel still get into collisions. There would be no need for an insurance industry if this weren’t the case.
“The thing I’d be worried about is the fail safes against network failure, sensor failure and bugs,” says Shaw. “That’s the real danger.”
Where do you point the finger when the fail safes fail?
“I assume — without knowing — that the cars would come with fairly specific instructions about when it is appropriate to use the automatic mode versus manual mode,” says Bill Childs, a professor at the Western New England College School of Law and co-editor of the TortsProf blog. “Obviously, that would make a difference in finding liability. I further expect that the software would be designed to record when the vehicle was operated by a person versus the machine,” says Childs.
“Certainly the manufacturer could be held liable, just as other product manufacturers are held liable, if they create a defective product.”
However, does one assign ultimate liability in such a situation? Is it the fault of the automaker or the software programmer who puts his product in someone else’s car?
While Google recently got into the business of making its own smartphone, the Nexus One–albeit through a contract with Taiwan’s HTC–manufacturing cars is a big leap and one the software company is unlikely to undertake. Instead, based on its research, Google is likely to be a technology provider, licensing its software tools to OEMS that integrate the product into their vehicles. Could Toyota turn around and sue Google when something bad happens?
“Absolutely,” says Lovernick. “Under a contribution and/or indemnity claim a defendant can sue other parties for all or part of the amount they are responsible. Accidents involving “driverless cars” will certainly open manufacturers up to an array of products liability suits in ways that they would likely not with a human behind the wheel and in control.
And what if the driver claims he or she was not driving the car when it hit someone?
“Legally speaking, a court doesn’t prove liability, it’s up to the plaintiff to carry his/her burden of proof,” says Lovernick. “That said, to determine who/what was responsible for an accident, we can only look to the laws as written. As in the vehicle code, we would have to determine who the driver is. The legislature didn’t contemplate driverless vehicles when it wrote these code sections. We would need them provide guidance or have a court interpret the statute to include the car’s operator to include the software.”
So before you rush out to put down a deposit on a Google car, make sure you talk to your lawyer. Google already has theirs.
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