Escolar Documentos
Profissional Documentos
Cultura Documentos
3/31/2012 11:36 AM
ANDREW P. GARZA*
ABSTRACT
* Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Political Science,
University of Connecticut (2009). I would like to thank my family for all of their love and
support; my editors for their unending patience and positivity; and my Jennifer
Lynne, my wife.
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INTRODUCTION
fter a long day at work a man climbs into his van to start the drive
home; minutes later he falls asleep and is killed as he collides with
a tractor-trailer.1 A ninety-year-old woman on her way to the store
runs a red light and kills a seventeen-year-old high school student, causing
the community to weigh the elderlys need for independence with the
safety of their children.2 Another man has a stroke while driving, causing a
crash with a motorcycle and a truck on an expressway. 3 These three
accidents all have one thing in common: the crashes may have been
avoided had the occupants been driving a Google car.
While the idea of a self-driving car was no more a reality than the
protagonists work commute in the film adaptation of Isaac Asimovs I,
Robot,4 this all changed in October 2010.5 On its blog, Google unveiled that
it had created and successfully tested the worlds first truly autonomous
car:
Our automated cars, manned by trained operators, just drove
from our Mountain View campus to our Santa Monica office and
on to Hollywood Boulevard. Theyve driven down Lombard
Street, crossed the Golden Gate bridge, navigated the Pacific
Coast Highway, and even made it all the way around Lake
Tahoe. All in all, our self-driving cars have logged over 140,000
miles. We think this is a first in robotics research.6
David Bauerlein, Driver Dies After Falling Asleep, Crashes, TIMES-UNION, Aug. 2, 2010, at
B3.
2
See Robert Davis & Anthony DeBarros, Stopping Older, Dangerous Drivers a Growing
Problem, USA TODAY, May 2, 2007, at A1.
3 Andrew Welsh-Huggins, Stroke, Car Crash Latest Obstacles for Watergates Magruder, USA
TODAY, July 31, 2007, http://www.usatoday.com/news/nation/2007-07-31-jeb-magruder_
N.htm.
4 See I, ROBOT (20th Century Fox 2004). In the year 2035 a techno-phobic cop investigates a
crime that may have been perpetrated by a robot, which leads to a larger threat to humanity.
I, Robot, INTERNET MOVIE DATABASE, http://www.imdb.com/title/tt0343818 (last visited Mar.
25, 2012).
5 Sebastian Thrun, What Were Driving At, OFFICIAL GOOGLE BLOG (Oct. 9, 2010, 12:00 PM),
http://googleblog.blogspot.com/2010/10/what-were-driving-at.html.
6
Id.
See John Markoff, Smarter than You Think: Google Cars Drive Themselves, in Traffic, N.Y.
TIMES, Oct. 10, 2010, at A1; Talk of the Nation: Google Asks, Why Should a Car Need a Driver?
(National Public Radio radio broadcast Oct. 11, 2010) [hereinafter Talk of the Nation], available at
www.npr.org/ templates/story/story.php?storyId=130492972.
7
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See Chris Matyszczyk, Googles New Robot Car: Crazy Good or Crazy Crazy?, CNET (Oct. 10,
2010, 10:54 AM), http://news.cnet.com/8301-17852_3-20019139-71.html; Aaron Saenz, Googles
New Robot Car Raises Hopes, Reality Will Dash Them Soon, SINGULARITY HUB (Oct. 11, 2010),
http://singularityhub.com/2010/10/11/googles-new-robot-car-raises-hopes-reality-will-dashthem-soon.
9
12
13
14
15
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18 See generally NATL HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS: 2005 DATA
(2005), available at http://www-nrd.nhtsa.dot.gov/Pubs/ 810621.pdf (discussing the number of
lives saved by seat belt use).
19 Id. at 5 tbl.4.
20 See NATL HIGHWAY TRAFFIC SAFETY ADMIN., HUMAN FACTORS FORUM ON ADVANCED
VEHICLE SAFETY TECHNOLOGIES: SUMMARY & PROCEEDINGS 1-2 (2008), available at
http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/2008/DOT
%20HS%20810%20918.pdf.
21 See Larry Carley, Active Safety Technology: Adaptive Cruise Control, Lane Departure Warning
& Collision Mitigation Braking, IMPORT CAR (June 16, 2009), http://www.import-car.com/
Article/58867/active_safety_technology_adaptive_cruise_control_lane_departure_warning__c
ollision_mitigation_braking.aspx.
22 Id.
23 Id. As the technology currently operates, if the vehicle loses communication with any of
the sensors necessary for ACC to functionlike the laser or radar range finder, speed sensor,
throttle position sensor, or throttle and brake control systemsACC becomes unavailable to
the driver until the problem is repaired. Id.
24 Robert Bennett, Adaptive Cruise Control Helps Drivers with Disabilities, DISABOOM,
http://www.disaboom.com/auto-enthusiast/adaptive-cruise-control-helps-drivers-with-
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disabilities (last visited Mar. 25, 2012) (arguing that *d+rivers with slower reaction times, or
those with mobility challenges, will benefit from ACCs anticipatory capabilities).
25 Robert Scoble, The Most Under-Hyped, but Most Important, Technology Since Seat Belts,
SCOBLEIZER (Jan. 3, 2010), http://scobleizer.com/2010/01/03/the-most-under-hyped-but-mostimportant-technology-since-seat-belts.
26
NATL HIGHWAY TRAFFIC SAFETY ADMIN., ANALYSIS OF LANE CHANGE CRASHES at viii
(2003), available at http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20
Avoidance/2003/DOTHS809571.pdf.
27 See FED. MOTOR CARRIER SAFETY ADMIN., U.S. DEPT OF TRANSP., CONCEPT OF
OPERATIONS AND VOLUNTARY OPERATIONAL REQUIREMENTS FOR LANE DEPARTURE WARNING
SYSTEMS (LDWS) ON-BOARD COMMERCIAL MOTOR VEHICLES (July 2005), http://
www.fmcsa.dot.gov/facts-research/research-technology/report/lane-departure-warningsystems.htm (discussing LDWS manufactured by a variety of companies).
28
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road ahead.33 CMBS save lives because the majority of drivers do not fully
apply their brakes before a crash. 34 When an impending collision is
detected, the CMBS takes preventative measures. 35 Depending on the
sophistication of the equipped CMBS, three separate approaches may be
taken to prevent an accident. 36 In the most basic version, the CMBS alerts
the driver that he is approaching a vehicle from behind too quickly. 37 In a
more advanced version, the CMBS tightens the seat belts and preloads the
brakes to reduce the reaction time and stopping distance once the brakes
are applied.38 If the driver fails to react in time, it applies 40% of the full
braking power to reduce the severity of the collision.39 In the most
advanced version, the CMBS performs all of the functions described above,
and it will also stop the car automatically to avoid a collision when
traveling under ten miles-per-hour.40 Car companies are hesitant to push
the automatic braking threshold too far out of fear that fully automatic
braking systems will shift the responsibility of avoiding an accident from
the vehicles driver to the vehicles manufacturer.41
B. Super Cruise Control42
The World Health Organization estimates that over 1.2 million people
die each year in road traffic accidents.43 In the United States alone, over
180,000 people died in motor vehicle crashes between 2005 and 2010. 44
Google believes that its autonomous car can reduce traffic fatalities by as
33
See id.
See Scoble, supra note 25.
35 See id.
36 See Carley, supra note 21.
37 Id.
38 Id.; see also INS. INST. FOR HIGHWAY SAFETY, Q&A: CRASH AVOIDANCE TECHNOLOGY,
http://www.iihs.org/research/qanda/crash_avoidance.html (follow What kinds of crash
avoidance technologies are currently available for passenger vehicles? hyperlink) (last visited
Mar. 25, 2012).
34
39
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much as half.45
1.
47
See Urban Challenge: Overview, DARPA, http://archive.darpa.mil/grandchallenge/
overview.asp (last visited Mar. 25, 2012). The purpose of DARPAs Grand Challenges is to
leverage American ingenuity to accelerate the development of autonomous vehicle
technologies . . . . Grand Challenge Overview, DARPA, http://archive.darpa.mil/grandchallenge
04/overview.htm (last visited Mar. 25, 2012).
48
51
54
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the cars surroundings, is located on top of the vehicle.56 The left rear wheel
of the car contains a position estimator that measures the cars
movement and helps pinpoint its location on a map.57 A camera mounted
near the rear-view mirror, much like those used in LDWS, recognizes
traffic lights and helps the computer identify pedestrians and bicyclists. 58
Like vehicles equipped with CWS, there are radar sensors in the front and
rear bumpers that provide the car with information about its relative
distance from surrounding objects.59 Finally, a GPS receiver and an
inertial motion sensor help determine the location, speed, and movement
of the vehicle.60
2.
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ANALYSIS
II. Assessing OAV Liability: Lessons from the Past
According to NHTSA, there are almost 16,000 car accidents each day in
the United States.64 Necessarily, the question arises: What happens when
OAVs are involved in accidents?65 As with many new technologies,
predictions are made, and there is often a desire to create a new legal
framework to address the particular advent. 66 Although this is tempting,
the current state of products liability law is equipped to handle the
implementation of OAVs just as it handled previous technologies. 67
Because [e]rror in legislation is common, and never more so than when
the technology is galloping forward, it is important to avoid attempts to
match an imperfect legal system to an evolving world that we understand
poorly.68
A. Autonomous Vehicles and the Legal Road Ahead
Products liability law ascribes liability to a manufacturer or seller of a
product that injures a person or property.69 The four principal products
liability claims are negligence, breach of warranty, strict products liability,
and misrepresentation.70
Today, strict liability is considered the dominant legal theory in
products liability litigation.71 Justice Robert Traynors concurrence in Escola
v. Coca Cola Bottling Co.72 enunciated the theory of strict liability in products
liability cases.73 In order for a plaintiff to recover on a claim for strict
products liability, they must prove two elements: (1) that the defendant
sold a defective product; and (2) that the defect proximately caused the
64
NATL HIGHWAY TRAFFIC SAFETY ADMIN., 2008 TRAFFIC SAFETY ANNUAL ASSESSMENT
HIGHLIGHTS 3 tbl.4 (2009), available at http://www-nrd.nhtsa.dot.gov/pubs/811172.pdf
(dividing the 2008 figure by 365).
65 See infra Part II.C.
66 Cf. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207,
207 (discussing the potential pitfalls in prescribing legal adaptations for cyberspace).
67
70
Id. at 15.
1 LOUIS R. FRUMER & MELVIN I. FRIEDMAN, PRODUCTS LIABILITY 8.01(1), at 8-6 (Cary
Stewart Sklaren ed., 2011).
72 150 P.2d 436, 440 (Cal. 1944) (Traynor, J., concurring).
73 TERRENCE F. KIELY & BRUCE L. OTTLEY, UNDERSTANDING PRODUCTS LIABILITY LAW 1.04,
at 15 (2006).
71
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plaintiffs harm.74
The theory of strict liability was also established in the Restatement
(Second) of Torts.75 Under the Restatement (Second) of Torts, a product can
be defective as a result of a manufacturing defect, a design defect, or a
warning defect.76 Manufacturing defects result from the improper
construction of a product that leads to malfunction, whereas design defects
allege that the design of an entire product line is unsafe. 77 Finally, where a
manufacturer insufficiently informs or fails to warn the users of its
product, and the product is more dangerous due to the insufficient
warning, a plaintiff may allege a warning defect. 78 Automobile products
liability cases are typically divided into two categories: (1) accidents
caused by automotive defects, and (2) aggravated injuries caused by a
vehicles failure to be sufficiently crashworthy to protect its occupants in
an accident.79
74 DAVID G. OWEN, PRODUCTS LIABILITY LAW 5.3, at 261 (2005). Although the Restatement
(Second) of Torts uses the language defective condition unreasonably dangerous, Owen
argues that most courts and commentators encapsulate this phrase with the use of the term
defective, which simply means that a product is more dangerous than it properly should
be. Id. at 262.
75
Id.
76 AMERICAN LAW OF PRODUCTS LIABILITY 17:3, at 11 (3d ed. 2010) [hereinafter AM. L.
PRODS. LIAB.].
77
78
79
Id.
Id.
OWEN, supra note 74, 17.1, at 1072-73 (footnote omitted).
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80
Id. at 1074.
See, e.g., Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 75 (N.J. 1960).
82 See, e.g., Consalo v. Gen. Motors Corp., 609 A.2d 75, 76 (N.J. Super. Ct. App. Div. 1992).
83 See 1 MADDEN & OWEN, supra note 69, 7:12, at 431.
84 Id. The malfunction theory has been adopted by the Restatement (Third) of Products
Liability. RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. 3 (1998).
81
85
See generally AM. L. PRODS. LIAB., supra note 76, 97:26, at 42 (2008 & Supp. 2010).
See generally id. (discussing the many makes and models of vehicles with a roll-over
propensity that have lead to many products liability cases).
86
87
See generally id. 97:200 (surveying the verdicts and settlements of inadvertent
transmission slippage cases in many states).
88 See 1 MADDEN & OWEN, supra note 69, 5:5, at 293-94.
89 KIELY & OTTLEY, supra note 73, at 135; see Bruce v. Martin-Marietta Corp., 544 F.2d 442,
447 (10th Cir. 1976).
90
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Id.
See id. at 139; compare Soule v. Gen. Motors Corp., 882 P.2d 298, 308 n.3 (Cal. 1994)
(*O+rdinary consumers . . . may and do expect that . . . vehicles will be designed so as not to
explode while idling at stoplights, experience sudden steering or brake failure as they leave
the dealership, or roll over and catch fire in two-mile-per-hour collisions.), with Heaton v.
Ford Motor Co., 435 P.2d 806, 809 (Or. 1967) (High-speed collisions with large rocks are not
so common, however, that the average person would know from personal experience what to
expect under the circumstances.).
92
93
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have been less severe, or avoided entirely, had the manufacturer used a
feasible alternative design.100
Plaintiffs have also claimed that defects in warnings have resulted in
injury.101 The plaintiff in Greiner v. Volkswagenwerk Aktiengeselleschaft
alleged a defect in warning where the Volkswagen Beetle she was driving
rolled over due to her aggressive steering. 102 The plaintiff contended that
Volkswagen was liable for failing to warn of the vehicles possible
dangerous propensity to rollover, and the court permitted the issue to go
to the jury.103
2.
Litigation can also arise where a plaintiff alleges that a vehicle is not
sufficiently crashworthy.104 Crashworthiness claims are a type of designdefect claim.105 As a result, courts use both the consumer-expectations test
and the risk-utility test when assessing a vehicles crashworthiness.106 The
choice of test depends on state law, however, and cases may be governed
by either or both of the tests.107 Although the consumer-expectations test is
the governing law in almost half of the United States, 108 the modern trend
is to use the risk-utility test in crashworthiness determinations.109
Crashworthiness is defined by Congress as the protection a
passenger motor vehicle gives its passengers against personal injury or
100 1 MADDEN & OWEN, supra note 69, 8:5, at 463 (quoting McCarthy v. Olin Corp., 119
F.3d 148, 155 (2d Cir. 1997). Not all jurisdictions require proof of a reasonable alternative
designin fact, scholars have argued that requiring such proof undermines the policies
underlying strict liability because it creates a pseudo-negligence standard. See, e.g., Patrick
Lavelle, Comment, Crashing into Proof of a Reasonable Alternative Design: The Fallacy of the
Restatement (Third) of Torts: Products Liability, 38 DUQ. L. REV. 1059, 1100 (2000). This is also
known as the reasonable alternative design test, and is incorporated into the Products
Liability Restatement: A product . . . is defective in design when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor . . . and the omission of the alternative
design renders the product not reasonably safe. RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB.
2(b) (1998).
101
102
103
104
105
106
107
108
109
See Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85, 90 (3d Cir. 1976).
Id. at 92.
Id. at 90, 97.
See generally Larsen v. Gen. Motors Corp., 391 F.2d 495, 502-05 (8th Cir. 1968).
1 MADDEN & OWEN, supra note 69, 8:1, at 438.
OWEN, supra note 74, at 1088.
See 1 MADDEN & OWEN, supra note 69, 8:3, at 445-46, 449.
Id. at 449.
OWEN, supra note 74, at 1089.
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110
112
114
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and have led to trepidation in the incorporation of novel safety devices. 121
B. Safety-Device Development, Manufacturer Attitudes, and Products
Liability Treatment
Automobile manufacturers have been concerned about incorporating
safety devices for decadeshistorically, such concerns have centered
around the anticipated shift in liability from drivers to manufacturers.122
Not surprisingly, this trepidation is heightened in response to autonomous
vehicles.123 Despite manufacturer concerns, the anticipated shift in liability
that will accompany the adoption of autonomous vehicles will not be
overly problematic.124 Products liability law is capable of handling the
new technology just as it handled the incorporation of seat belts, air bags,
and cruise control.125 By looking at the development of these technologies
and the way that they have been treated under products liability law, it
becomes apparent that autonomous vehicles will be handled in much the
same way.126
1.
The first seat belt was installed in a motor vehicle in 1955.127 Ford
Motor Company spearheaded the safety efforts by installing lap belts, and
state legislatures began mandating installation shortly thereafter. 128 Despite
Fords efforts, other manufacturers were hesitant. 129 General Motors
consistently contested the value of belts, tried to minimize their
importance for the industry and attempted to discourage their
adoption.130
121
123 See KENT D. SYVERUD, UNIV. OF MICH., SMART CAR AND SMART HIGHWAY LIABILITY:
LESSONS FROM EXPERIENCE WITH AIRBAGS, ANTILOCK BRAKES, CRUISE CONTROL, AND CELLULAR
TELEPHONES 2 (1992).
124 But see RAND REPORT, supra note 62, at 45 (arguing that the increase in manufacturer
liability is expected to be problematic).
125
130
Id.
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Id.
Peter Scaff, Comment, The Final Piece of the Seat Belt Evidence Puzzle, 36 HOUS. L. REV.
1371, 1377 (1999); see National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89563, 80 Stat. 718, 727, repealed by Pub. L. 103-272, 108 Stat. 1385 (1994).
133
134 See Daniels, supra note 131, at 1132; Scaff, supra note 133, at 1377 & n.33 (discussing the
evolution of mandatory seat-belt-usage laws in the 1980s and the adoption of Standard 208).
135 OWEN, supra note 74, at 1111; see also Federal Motor Vehicle Safety Standard; Occupant
Crash Protection, 49 Fed. Reg. 28,962, 28,963 (July 17, 1984) (codified at 49 C.F.R. 571.208
(2010)).
136
See, e.g., Johnson v. Gen. Motors Corp., 438 S.E.2d 28, 31 (W. Va. 1993) (alleging that a
seat belt design was not sufficiently crashworthy where it lacked both a lap- and shoulderrestraint system); see generally Harold A. Sakayan et al., More than a Case About a Car: An
Analysis of Garrett v. Ford Motor Company, TRIAL, Feb. 1989, at 34, 34 (discussing seat belt
injury claims and the public-benefit role that plaintiffs lawyers can play by bringing suits);
Swartz et al., supra note 129, at 47-49 (discussing seat belt design defects, manufacturer
resistance to incorporation, and special seat belt litigation issues).
137
138
Id. at 804.
139
Id. at 806 (quoting Cunningham v. Mitsubishi Motors Corp., No. C-3-88-582, 1993 WL
1367436, at *3 (S.D. Ohio June 16, 1993)).
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597
John W. Hetrick was issued a patent for the air bag in 1953 by the U.S.
Patent and Trademark Office.145 Hetrick conceived the idea after the
torpedo he was repairing unexpectedly released a burst of air and inflated
its canvas covering.146 The air bag did not become feasible until 1966 when
the U.S. Army developed a triggering mechanism capable of deploying
it.147 The air bag was first offered commercially in 1970.148 But, car
manufacturers were hesitant to adopt the air bag then because of both
technological uncertainties and the threat of product liability.149 In
1976, however, NHTSA promulgated Federal Motor Vehicle Safety
Standard 208, which required manufacturers to install their choice of either
lap and shoulder belts, air bags, or both. 150 By the late 1980s and early
1990s, most manufacturers began to install air bags. 151
Litigation involving air bags has typically focused on three areas: (1)
failure of a manufacturer to install an air bag when it was technologically
140
149
150
151
Id. at 214-15.
OWEN, supra note 74, at 1093; see also 49 C.F.R. 571.208, S4.2.2 (2007).
See OWEN, supra note 74, at 1093.
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161
See Frank Rowsome Jr., Educated Gas Pedal Keeps the Cops Away, POPULAR SCI., Jan. 1954,
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Id. at 106.
Rowsome I, supra note 161, at 169.
169 Rowsome II, supra note 166, at 250.
170 See id.
171 See generally AM. L. PRODS. LIAB., supra note 76, 97:107 (listing litigation based on
cruise control failure in a variety of states); see, e.g., Jarvis v. Ford Motor Co., 283 F.3d 33, 38-39
(2d Cir. 2002); Jurls v. Ford Motor Co., 752 So. 2d 260, 262 (La. Ct. App. 2000).
172 See Scott Dayton, Seventh Circuit: Even Plaintiffs Relying on the Consumer Expectations
Test Must Present Expert Testimony, PRODUCT LIABILITY MONITOR (Sept. 23, 2011),
http://product-liability.weil.com/expert-issues/seventh-circuit-even-plaintiffs-relying-on-theconsumer-expectations-test-must-present-expert-testimony/#axzz1lqmoVjiy. Discussing the
Seventh Circuits decision in Show v. Ford Motor Co., 659 F.3d 584, 588 (7th Cir. 2011), Dayton
writes:
168
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Id.
173 See Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 336 (Ill. 2008); Calles v. ScriptoTokai Corp., 864 N.E.2d 249, 257 (Ill. 2007); Santosa v. Chrysler Corp., No. 48823-6-I, 2002 WL
31045305, at *9 (Wash. Ct. App. Sept. 9, 2002).
174 See supra Part II.B.2.
175 See OWEN, supra note 74, at 1072-73.
176 See RAND REPORT, supra note 62, at 28.
177 See AM. L. PRODS. LIAB., supra note 76, 17:3, at 12.
178 See 1 MADDEN & OWEN, supra note 69, 7:12, at 112-13.
179 Consalo v. Gen. Motors Corp., 609 A.2d 75, 76 (N.J. Super. Ct. App. Div. 1992).
180 See RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. 3 (1998); 1 MADDEN & OWEN, supra
note 69, 7:12 at 112-13.
181
182
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on to replace the need for independent vigilance on the part of the vehicle
operator.183
Plaintiffs will argue that, while the workings of the technology are
concededly complex, the overall concept of autonomous driving is not.184
Like the car exploding at a stoplight or the car that catches fire in a twomile-per-hour collision, the average consumer would expect autonomous
vehicles to drive themselves without incident.185 This means that
components that are meant to keep the car within a lane will do just that,
and others will stop the vehicle at traffic lights. 186 Where incidents occur,
OAVs will not have performed as the average consumer would expect.187
While many courts have found that consumers are sufficiently familiar
with seat belts, there is uncertainty about whether air bags and cruise
control are commonplace.188 The farther removed from the everyday, the
less likely courts are to permit proof of defect under the consumerexpectations test.189 Plaintiffs would be well advised to emphasize the allencompassing role that OAV technology plays in their lives. 190 While
interactions with air bags are admittedly not part of the everyday
experience of the consuming public, surely commuting to work and
running errands are.191 Such consistent, engrossing interactions with OAVs
will lead to increased consumer familiarity and will more closely align
consumer expectations with reality.192
As was seen with seat belts, air bags, and cruise control, courts are
hesitant to allow plaintiffs to proceed under the consumer-expectation test
183
184
185
188
See Pruitt v. Gen. Motors Corp., 86 Cal. Rptr. 2d 4, 5-7 (Cal. Ct. App. 1999) (finding air
bags too complex for the consumer-expectations test); cf. Watson v. Ford Motor Co., 699 S.E.2d
169, 177 & n.4 (S.C. 2010) (requiring proof of defect under the risk-utility test because the
vehicles cruise control system was too complex for the consumer-expectations test).
189
191
See id. at 6.
See Bresnahan v. Chrysler Corp., 38 Cal. Rptr. 2d 446, 451 (Cal. Ct. App. 1995)
(discussing the role that consumer awareness plays in the propriety of the consumerexpectations test).
192
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where the technology itself is novel.193 Thus, plaintiffs who purchase OAVs
at the cusp of availability, and attempt to prove defect under the consumerexpectations test, are likely to face an up-hill battle.194 But the unavailability
of the consumer-expectations test will not be a significant detriment as
plaintiffs can fall back on the risk-utility test.195 And as OAVs are
increasingly incorporated, and users become more familiar with their
capabilities, the consumer-expectations test will become more accessible to
plaintiffs.196 Given the modern trend, plaintiffs are likely to face the riskutility test.197
Manufacturers have been hesitant to incorporate automatic braking
technologies because they would shift liability for accidents almost
exclusively to the manufacturer.198 This concern will likely carry over to
OAVs as they represent an even greater shift in responsibility for
accidents.199 Where a driver relies on the cars ability to stop itself, and that
ability malfunctions, manufacturers will be liable for resulting injuries.200 In
such cases, a consumers expectations about the cars capabilities will lead
to liability under a design-defect theory.201 Difficulties arise, however,
where proof is required under a risk-utility theory.202
2.
Risk-Utility Applied
See James A. Henderson, Jr., Echoes of Enterprise Liability in Product Design and Marketing
Litigation, 87 CORNELL L. REV. 958, 985 (2002) (*A+irbags involve new technology about
which consumers are unable to form expectations of safety.); cf. Bresnahan, 38 Cal. Rptr. 2d at
451 (permitting the application of the consumer-expectations test where the public develops a
sufficient familiarity with novel technology).
194
203
204
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211
215
Id.
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heavily onto the benefit side of the equation. 216 Thus, where a jury heavily
weighs the benefits of autonomous vehicles against the risks they create,
manufacturers will benefit.217
Some commentators argue, however, that the incorporation of these
statistics is misleading and presents juries with a false choice.218 They argue
that the appropriate comparison is not how much safer autonomous cars
are than nonautonomous cars but, rather, how safe they are relative to
alternative, autonomous vehicles.219 From the common-sense notion that
the potential for safer alternatives is only likely to increase with advances
in technology, analyses that exclude the incorporation of safety statistics
are likely to benefit plaintiffs.220 But, while such a tilt may increase
manufacturer liability, this increase will be offset by the benefits that
autonomous technologies bring.221
3.
Crashworthiness Applied
216
See Thrun, supra note 5. However, this assessment may neglect the emotional
component of jury trials. See Norton, supra note 152, at 684. Juries may disregard
considerations of speculative nonparties who reap benefits from safety technologies, in favor
of ascertainable and sympathetic injured plaintiffs. See id.
217 See Norton, supra note 152, at 676.
218 See id.
219 See id. at 688.
220 See id. at 687-88 (arguing that the use of statistics may unfairly inflate the benefits of a
product).
221
223
See id.
See Howard M. Bunch, The Small Car May Be Dangerous to Your Health! The Consequences
of Downsizing, in GOVERNMENT, TECHNOLOGY, AND THE FUTURE OF THE AUTOMOBILE 171, 17177 (Douglas H. Ginsburg & William J. Abernathy eds., 1980) (arguing that the downsizing of
cars negatively impacts occupant safety).
224
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605
230
See Larsen v. Gen. Motors Corp., 391 F.2d 495, 503 (8th Cir. 1968).
231
See id. (*M+anufacturer*s+ should be liable for that portion of the damage or injury
caused by the defective design over and above the damage or injury that probably would
have occurred as a result of the impact or collision absent the defective design.).
232
234
236
606
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237
238
239
240
241
242
243
244
245
246
247
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NHTSA research on the impact of primary seat belt laws (laws requiring
belt use) found that increased seat belt use leads to a corresponding
decrease in the medical expenses shouldered by state and federal
governments.248 The increase in usage rates of seat belts generates
significant savings not only for state Medicaid budgets but for insurance
companies as well.249 For example, NHTSA estimated that the increased
seat belt use accompanying a primary belt law would save Massachusetts
insurance companies $55.8 million, the Federal Government $3.9 million,
and Massachusetts $5.7 million from crash-related injuries in the first year
alone.250
As the use of safety devices incorporated by manufacturers increases,
injuries and medical costs decrease.251 Decreased medical costs lead to a
corresponding decrease in compensatory damage amountsthus,
defendants in products liability suits ultimately pay less. 252 A reduction in
medical costs will also follow from OAV implementation. 253 Should
Googles estimates for safety increases prove true (a reduction in crashes
by as much as half), car manufacturers stand to reap enormous benefits. 254
If OAVs cut the number of motor-vehicle fatalities in half, although
manufacturers will be burdened by the possibility of increased liability,
they will ultimately pay less for actual liabilities because fatalities are fewer
and injuries are less severe. 255
Manufacturers obtain products liability insurance to help protect
against the cost of adverse judgments when consumers are accidentally
255
608
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256
258 See Drucilla K. Barker, An Empirical Analysis of the Effects of Product Liability Laws on
Underwriting Risk, 58 J. RISK & INS. 63, 77 (1991); Robert G. Berger, The Impact of Tort Law
Development on Insurance: The Availability/Affordability Crisis and Its Potential Solutions, 37 AM.
U. L. REV. 285, 300 (1988); Evan L. Rosenfeld, Article, The Strict Products Liability Crisis and
Beyond: Is There Hope for an AIDS Vaccine?, 31 JURIMETRICS J. 187, 195-96 (1991) (citation
omitted).
259 See Rosenfeld, supra note 258, at 195-96.
260 Stovsky, supra note 257, at 373-74. However, heightened manufacturer liability can be
beneficial. See Mark Geistfeld, The Political Economy of Neocontractual Proposals for Products
Liability Reform, 72 TEX. L. REV. 803, 821 (1994) (arguing that full manufacturer liability for
product-caused losses will lead to optimal manufacturer investments in product safety). As
the cost of liability is incorporated into the price of the product, the necessity of keeping prices
low will lead to increased investments in product safety. Id. at 821-22.
261
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609
costs.264
2.
264
267
Cf. SYVERUD, supra note 123, at 3 (arguing that much of the concern about legal liability
is overstated or uninformed because, although new technologies have been employed in the
past, they have been successfully managed or minimized by the defendants).
268
269
270
271
272
273
274
610
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275
Cf. id.
Berger, supra note 258, at 314.
277 See Louis B. Potter, Are Punitive Damages Getting Out of Control?: Eliminate Them in Tort
Actions, A.B.A. J., Dec. 1984, at 16, 21.
278 Lewis N. Klar, The Impact of U.S. Tort Law in Canada, 38 PEPP. L. REV. 359, 368 (2011)
(highlighting punitive damages as a key difference between the American and Canadian tort
systems).
276
279 See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003); BMW of
N. Am., Inc. v. Gore, 517 U.S. 559, 585-86 (1996).
280 Neil B. Stekloff, Note, Raising Five Eyebrows: Substantive Due Process Review of Punitive
Damages Awards After BMW v. Gore, 29 CONN. L. REV. 1797, 1797 (1997); see BMW, 517 U.S. at
596-97 (Breyer, J., concurring).
281
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611
OAVs.283 Although this may have been the case in the past, modern
technology will decrease reliance on expert testimony in OAV product
liability cases and reduce the number of cases that go to trial.284
Electronic Data Recorders (EDR) and LDWS cameras will play a
large role in these reductions. 285 EDRs, like black boxes in airplanes, record
crash information.286 Although EDRs are not relatively well known, they
are already being used in accident reconstruction and to corroborate the
cases of savvy attorneys.287 EDR technology has progressed over time, and
the modern, sophisticated models can capture driver inputs (like braking
and steering) and the status of vehicle safety systems. 288 When a crash
occurs, the EDR records the data in its long-term memory.289 To date, EDRs
have been installed in most light motor vehicles, especially those with air
bags, but the sophistication of the recorders varies. 290
In 2006, NHTSA passed an Event Data Recorder Rule, 291 which
standardized the data to be collected by EDRs. 292 Currently, sophisticated
EDRs are capable of determining engine RPMs, occupant size and location,
air bag deployment statistics, vehicle roll angle, and anti-lock brake
activity.293 The rule required total manufacturer compliance by September
1, 2011.294 It is foreseeable that OAVs will also be equipped with EDRs
because most light cars today are equipped with EDRs, and OAVs will be
developed in a period of increasing manufacturer compliance with EDR
regulations.295
283
612
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As discussed above, the Google car has a camera mounted near the
rear-view mirror much like those used by LDWS.296 While the camera is
currently used to recognize traffic lights and aid the computer in
identifying pedestrians and bicyclists, it could easily be modified to record
data.297 The combination of recording an accident as it occurs and the
multitude of EDR data will aid causation determinations.298 Although
privacy issues are a foreseeable obstacle to this solution,299 the benefits to
plaintiffs and defendantsin the form of reduced expenditures on expert
testimony for causation determinationswill be enormous.300
1.
296
298
300 See Michelle Morgan Ketchum, Comment, Experts: Witnesses for the Persecution?
Establishing an Expert Witnesss Bias Through the Discovery and Admission of Financial Records, 63
UMKC L. REV. 133, 157 (1994) (discussing the cost of expert testimony).
301 Id.
302 Joseph Sanders, Adversarial Legalism and Civil Litigation: Prospects for Change, 28 L. & SOC.
INQUIRY 719, 723 (2003).
303
304
305
306
307
See David G. Owen, A Decade of Daubert, 80 DENV. U. L. REV. 345, 346 (2002).
Id.
Id. at 349.
See id.
See Ricci, supra note 287.
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613
will provide objective data for courts and juries to consider, thereby
reducing the need for expert testimony about the cause of the accident. 308
As a result of decreased reliance on expert testimony, the cost of litigating
products liability claims will decrease.309 Additionally, EDRs and crash
recordings will foster settlements in OAV products liability cases. 310
2.
308
See id. Although some analysis of the EDR data will be necessarypotentially requiring
expertsthe objective nature of the data will enable courts and juries to more effectively
dispense of theories of causation that are inconsistent with the data. Cf. id.
309 Cf. Ketchum, supra note 300, at 157 (discussing the increased expense of expert
witnesses over time).
310 See infra Part III.B.2.
311 Samuel R. Gross & Kent D. Syverud, Dont Try: Civil Jury Verdicts in a System Geared to
Settlement, 44 UCLA L. REV. 1, 51 (1996).
312
See id.
Steven Garber & John Adams, Product and Stock Market Responses to Automotive Product
Liability Verdicts, 1998 BROOKINGS PAPERS ON ECONOMIC ACTIVITY: MICROECONOMICS 1, 4
(1998), available at http://www.jstor.org/stable/2534799.
314 See EVENT DATA RECORDERS, supra note 286, at 198-200 (discussing the types of data that
EDRs collect).
313
315
See id.
See Gross & Syverud, supra note 311, at 51. This has the potential to greatly benefit
manufacturers because many preposterous cases are settled because it is too risky to put
the injured plaintiff before a jury. See John D. Graham, Product Liability and Motor Vehicle
Safety, in THE LIABILITY MAZE: THE IMPACT OF LIABILITY LAW ON SAFETY AND INNOVATION,
316
614
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Id. at 114-16.
See Daniels, supra note 131, at 1132; Scaff, supra note 133, at 1377 & n.33.
320 NATL HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS : SEAT BELT USE IN
2008DEMOGRAPHIC RESULTS 2 tbl.1 (2009), available at http://www-nrd.nhtsa.dot.gov/Pubs/
811183.PDF.
321 See Graham, supra note 316, at 122 & fig.4-1.
322 See id. at 184.
323 Mackay, supra note 148, at 208.
324 Steven Garber, Product Liability, Punitive Damages, Business Decisions and Economic
Outcomes, 1998 WIS. L. REV. 237, 271.
319
325 Patrick S. McCarthy, Consumer Demand For Vehicle Safety: An Empirical Study, 28 ECON.
INQUIRY 530, 541 (1990).
326
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615
327
Id. at 15.
See MATTHIAS KUEHN ET AL., GERMAN INSURERS ACCIDENT RESEARCH, BENEFIT
ESTIMATION OF ADVANCED DRIVER ASSISTANCE SYSTEMS FOR CARS DERIVED FROM REAL-LIFE
ACCIDENTS 1, available at http://www-nrd.nhtsa.dot.gov/pdf/esv/esv21/09-0317.pdf.
328
329
See id.
Id.
331 See McCarthy, supra note 325, at 541. Remaining liability concerns may influence how
these products are marketed. See ROBERT D. ERVIN ET AL., ITS RESEARCH CENTER OF
EXCELLENCE, UNIV. OF MICHIGAN, ADAPTIVE CRUISE CONTROL: AN INDUSTRY OUTLOOK ON
PRODUCT FEATURES AND MARKETING 49 (1997), available at http://deepblue.lib.umich.edu/
handle/2027.42/1212 (discussing manufacturer reluctance to stress the safety benefits of ACC
for fear of liability).
330
332
334 See WILLIAM BOYES & MICHAEL MELVIN, MICROECONOMICS 131 (7th ed. 2008) (If the
price elasticity of supply of an item is large and the demand for it is price-inelastic, then the
firm can raise the price without losing revenue. In this case, the firm can pass on cost increases
to the consumer . . . .).
335
Cf. Ctr. for Auto Safety v. Peck, 751 F.2d 1336, 1352 n.11 (D.C. Cir. 1985) (discussing the
competitive nature of the automobile industry as driving the need of one manufacturer to
follow the lead of another when profitable).
336
616
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CONCLUSION
Autonomous vehicles have great potential to change our lives for the
better. As humans, we are fallible, andas the statistics showfallibility
leads to fatalities. Autonomous vehicles have the potential to cut the
number of lives lost each year by as much as halfOAVs would save lives
far beyond the number protected by seat belts and air bags. While there is
great potential for safety, the remaining concerns, coupled with
manufacturer liability, will dictate the pace of OAV implementation.
Although complex, OAVs function much like the cruise control that exists
in modern cars. As we have seen with seat belts, air bags, and cruise
control, manufacturers have always been hesitant to adopt safety
technologies. Despite concerns, products liability law is capable of
handling OAVs just as it has these past technologies.
While the novelty and complexity of OAVs are likely to preclude
plaintiffs from proving defect under the consumer-expectation test, as
implementation increases this likelihood may decrease. Under a risk-utility
analysis, manufacturers will stress the extraordinary safety benefits of
OAVs, while consumers will allege that designs can be improved. In the
end, OAV adoption will benefit manufacturers. Although liability will fall
on manufacturers when vehicles fail, decreased incidences and severity of
crashes will result in a net decrease in liability. Further, the combination of
LDWS cameras and EDRs will drastically reduce the cost of litigation. By
reducing reliance on experts for complex causation determinations, both
manufacturers and plaintiffs will benefit. In the end, obstacles to OAV
implementation are more likely to be psychological than legal, and the
sooner that courts, manufacturers, and the motoring public prepare to
confront these issues, the sooner lives can be saved.