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Product liability litigation could increase as driverless technology spreads, P.2

In our last post, we mentioned that the increasing use of automatic driving technology is raising important questions about liability in the event that cars equipped with the technology are involved in accidents. Already such litigation is occurring, as in the case of Tesla “autopilot” accidents. Autopilot is, contrary to what might be assumed, not fully automated technology, but driver assist technology. In other words, it requires driver supervision and potential correction, and the driver, ironically, can’t just go on autopilot.

Driverless technology, as the Tesla litigation shows, raises the risk of not only of defective design and manufacture liability, but also liability for failure to warn. In order for partial automation technologies to function without incident—assuming they are well-designed and manufactured defect-free—consumers need to understand how the technology works and their role in making it function properly. It is, therefore, as much a matter of educating the public about automatic driving technologies as it is a matter of making those technologies functional and free of defects.

One of the difficulties bound to be faced in accidents involving automatic driving technology is the relative liability of the driver and failures in the technology itself. How will plaintiffs demonstrate another driver’s responsibility for an accident when the driver was using automatic driving technology at the time of the crash? In some cases, the evidence for technological failure may be clear, and the manufacturer is then likely to face liability. At least one auto manufacturer, Volvo, has come out and said that it will accept liability for accidents caused by its self-driving vehicles. Manufacturers who don’t take on liability willingly may be forced to do so by the courts.

In cases where both the driver and the technology are arguably at fault for the accident, sorting out who should be held responsible, and to what extent, will be more difficult. Regulators and lawmakers may end up stepping in to address the issue and give definitive guidance on the matter, and the insurance industry will surely also have be part of the discussion. No doubt, there is money to be made in special forms of insurance. Whatever the future holds, experienced legal counsel and advocacy will become increasingly critical in sorting these issues out and ensuring that accident victims are fully compensated for their injuries and losses.