By Kyle Lyman
As a bicyclist and regular pedestrian in the city, I have to remain vigilant and on the look-out for motorists who are not paying attention. Innovators are trying to address the lack of attentiveness in part by introducing self-driving cars. A friend of mine posed the issue of who would be liable if a self-driving car struck a bicyclist or pedestrian, rather than a human motorist. I sought out an answer to this below . . . .
Ride-sharing companies and consumers will soon be utilizing new technology in self-driving automobiles. Some believe this technology will eliminate human error, which can be more common in our busy, distracted lives. The risk is whether or not self-driving cars will take safe avoidance measures when facing imminent collision. How does the technology determine who or what to hit when faced with a choice between a person, a motor vehicle, or a tree? Will the technology understand and adapt to human movement? When such risks are a part of the equation, the promotion of economic development and innovation must be balanced with health and liability considerations. Otherwise, public health is put at risk.
As a matter of health policy, it is important to know who can and will pay for the medical treatment of a victim. Generally, when a negligent motorist causes the harm of another their automobile liability coverage pays for damages and makes the victim “whole.” But what if the game is changed and there is no driver who breached a duty of reasonable care needed for recovery of damages? What if your tortfeasor is a computer program controlling the car? The answer from manufacturers and designers of the self-driving cars: “We took all of the reasonable precautions to avoid such an incident . . . therefore, we’re not negligent.” This response should not release them from liability.
Without a physical driver, liability for these incidents is likely to shift away from automobile insurers and toward self-driving car companies and manufacturers. States should consider imposing strict liability against self-driving car manufacturers and technology companies—even the ride-sharing companies themselves. Strict liability is imposed on actors, regardless of the care they exhibit, if they are engaged in an abnormally dangerous activity, and that activity is not in common use. With strict liability there is no need to prove negligence. So long as the activity causes the harm of another, there is liability. While operating motor vehicles is generally considered a “shared activity” and does not rise to the level of abnormally dangerous activities that risk explosions, there is a caveat for states to consider: autonomous vehicles are abnormally dangerous if they strike a bicyclist or pedestrian.
Strict liability arguments usually fail when the activity is considered common use or a “shared activity.”[1] Right now, self-driving cars are not a common use activity. Self-driving cars will be considered common use once ride-sharing companies start deploying them in their businesses. This gives states leverage right now in regulating these experimental vehicles. Michigan is one state taking action having placed liability on self-driving car manufacturers if the automated driving system causes the incident.[2]
Also affecting self-driving cars and liability is the likely replacement of negligence for products liability in state tort law. Last year, The Atlantic published an article concerning an incident in Tempe, Arizona where a pedestrian was struck and killed by one of Uber’s self-driving cars. The incident raised the concern that products liability did not apply since there was no product leased or sold.[3] Uber used Arizona as a testing ground for its fleet, and was neither selling nor leasing its vehicles. In a situation like this, while state-based, privity of contract might not bar a plaintiff’s claim.[4] A Uniform Commercial Code (“U.C.C.”) products liability claim could be brought under a theory of a breach of express warranty, or implied warranty of fitness for ordinary purposes.
Uber could not as easily fight an express warranty,[5] as it cannot be disclaimed. Uber could disclaim any implied warranty, potentially allowing it to escape legal liability for their self-driving cars (except in states like Massachusetts under Mass. Gen. Laws ch. 106, § 2-316A (2)(4) where implied warranties cannot be disclaimed to the extent they are consumer goods, or § 2A-214A (2)(4) to the extent it is a consumer lease). An implied warranty claim against a company like Uber most resembles strict liability in that the product is not fit for ordinary purposes.[6] But utilizing the U.C.C. is difficult, since notice of the breach must be brought in a reasonable time, and the statute of limitations is based off of the date of sale.[7] A plaintiff struck by a self-driving vehicle would have to notify all potential defendants as quickly as possible to avoid any procedural issues. Depending on the state, vertical privity of contract may require proof of sale, but there are a few exceptions using horizontal privity under the U.C.C. s. 2-318’s “third party beneficiaries.”[8] Under the “Alternative Classes,” those reasonably expected to use the product or be injured by it (such as a law abiding bicyclist or pedestrian who is not a direct consumer) may have a cause of action, regardless of their contractual relationship with the manufacturer or other companies. A cyclist would be utilizing their lungs and legs on a bike—not paying to sit in a car—and could foreseeably be struck and killed by such technology. A company like Uber may try to evade the U.C.C. arguing that ride sharing is a service and not a sale of a good, which will require the predominant purpose test to determine whether we’re dealing with a good or a service.[9] If it is a service, then the U.C.C. will not apply, unless the gravamen of the claim is based on the product. Beyond this, consumers ultimately will start buying their own autonomous vehicles and will have remedies as consumers or users of the product when the seller is one of goods of the kind.
Outside of the U.C.C., self-driving car companies could still remain liable through common law products liability application in manufacturing or design defects. Privity of contract would no longer bar a claim against a manufacturer.[10] A self-driving car manufacturer owes a duty of care to all those who may be foreseeably harmed by the car. Absent personal jurisdiction issues, liability could be imposed on the dealer selling the vehicles, and on up the chain to the manufacturer.[11] Companies promoting and selling self-driving vehicle technology as a means of transportation have a duty to the public to ensure the product is safe. Failure to place a safe vehicle onto public streets places not only other motorists at risk, but it places pedestrians and bicyclists at risk—especially if the product cannot properly adjust or predict various types of movement (like a human can).
If a driverless car comes off of the assembly line and deviates from specification (say, the ability to recognize a human), then the company is strictly liable for a manufacturing defect. There may also be a design defect, which is where a real legal battle could take place. A designer would argue that liability based on the product’s design would affect its whole fleet of cars. The other side would argue that a design that places the public at risk does not deserve to be on the market in the first place. Depending on the state, a court may ask whether the product met consumers’ expectations, or if there is a reasonable alternative design and if the risk to the public outweighs the burden on the companies to implement a safer design. This gives consumers and ultimate users remedies, but what about non-consumers and non-users?
A pedestrian in a crosswalk, or bicyclist in a bike lane are not users of a product like self-driving cars, but are potentially the most at risk for injury from the technology. These non-customers and non-users may face a valid defense by the self-driving car companies and manufacturers if the state has adopted Restatement 402A.[12] As a result, a pedestrian or cyclist plaintiff may be denied recovery under products liability, thus only leaving a negligence tort remedy, where proximate causation would be an issue. While it is still very early in fully establishing the legal regulations and remedies surrounding self-driving cars, this should be on the minds of lawyers, legislatures, and manufacturers as a matter of public health. I know it is on my mind as a cyclist.
Kyle Lyman is a 2L staff member on the Journal of Health and Biomedical Law. He has interests in torts and contract law. As a staff member, he is writing a full year note concerning the effectiveness of “vulnerable user laws” designed to deter negligent motorists from striking and injuring pedestrians and bicyclists.
[1] See Joseph W. Glannon, Examples and Explanations: The Law of Torts, 326 (Erwin Chemerinsky et al. eds., 5th ed. 2015). “Many ordinary activities entail risk—take driving, for example . . . . drivers and accident victims typically share in creating the risks of driving, which unusual activities that support strict liability generally involve a large risk created solely by the defendant.” Id. A victim in strict liability is generally a passive third party to the activity. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 20, cmt. e. Furthermore, “common use” is the best defense to a strict liability claim, which is what a motor vehicle operator could easily use. See Joseph W. Glannon, Examples and Explanations: The Law of Torts, 331.
[2] See Mich. Comp. Laws § 257.665b (4) (2016).
[3] See Ian Bogost, Can You Sue a Robocar?, Atlantic (Mar. 20, 2018), https://www.theatlantic.com/technology/archive/2018/03/can-you-sue-a-robocar/556007/.
[4] See Ralph C. Anzivino, The Implied Warranty of Merchantability and the Remote Manufacturer, 101 Marq. L. Rev. 505, 506 (2017).
[5] See U.C.C. 3-313.
[6] See U.C.C. 2-314 (implying warranty for ordinary purposes); see also U.C.C. 2-316 (noting ability to disclaim an implied warranty).
[7] See U.C.C. 2-607; U.C.C. 2-725.
[8] See U.C.C. 2-318.
[9] See Audio Visual Artistry v. Tanzer, 402 S.W.3d 789, 799 (Tenn. Ct. App. 2012).
[10] See Restatement (Second) of Torts: Negligent Manufacture of Chattel Dangerous Unless Carefully Made § 395 cmt. a (1979).
[11] See Restatement (Second) of Torts: Special Liability of Seller of Product for Physical Harm to User or Consumer § 402A cmt. f, l, illus. 1 (1965); see also Robert L. Rabin, Uber Self-Driving Cars Liability and Regulation, Standford Law School (Mar. 20, 2018), https://law.stanford.edu/2018/03/20/uber-self-driving-cars-liability-regulation/.
[12] See Restatement (Second) of Torts: Special Liability of Seller of Product for Physical Harm to User or Consumer § 402A cmt. o. This is noting that plaintiffs who are not the ultimate users of the product may not have the same expectation of safety from harm as those who are the ultimate users.