Who Is Liable When No One Is Driving?

Author: Chris Boggs

Opinions vary regarding the widespread availability and ultimate acceptance in the US of fully autonomous vehicles. Some foresee widespread adoption of fully autonomous vehicles within the next automotive generation" (within 13 years); others believe fully autonomous vehicles won't be the rule" for at least two or three automotive generations (26 to 39 years).

Both sides have credible arguments, but only one can be correct.

Technology evolves rapidly. It is reasonable to assume that the technology capable of supporting fully autonomous vehicles will exist long before the full acceptance and use of the technology. Thus, the technology IS likely less than an automotive generation away, yet total public acceptance and full utilization of vehicle autonomy conceivably remains two or three automotive generations away.

What is an Automotive Generation"?

Automotive generation" is not an auto industry term; the Virtual University invented this term to describe the technological transition time from one automotive generation to the next. An automotive generation" is a function of three somewhat unrelated time spans:

The estimated automotive technology production platform timing;
The average length of car ownership; and
The sociologically-developed generational time periods (baby boomers vs. Gen X vs. millennials, etc.)

Automotive Technology Production Platform

This is defined as, the number of years of incremental technology changes required for the overall technological differences (advancements) between the base" year model and the most current model to be considered significant." For instance, I purchased a Volvo XC 90 new in 2006. At the time, it had all the latest available technology. As Volvo made incremental changes to the XC 90's technology over the next several model years, the car seemed like a technological dinosaur when I passed the vehicle to my daughter in early 2017 (and she told me so many times).

Volvo's technological changes were not significant from one model year to the next, but the cumulative effect over time was drastic. The time between initial technology and significantly different technology is the automotive technology production platform.

Because this time period varies by maker and innovation, the automotive technology production platform can range from eight to 10 years.

The Average Length of Car Ownership

Current industry reports state that the average length of new car ownership now stands at 11.6 years. This data comes from a 2017 CNBC report.

Generational Time Periods

Sociologists developed and saddled us with the generational time periods we talk about so frequently. According to sociologists, the baby boom generation lasted 19 years, if you count the base years, (1946-1964). Generation X (my generation) joined the population between 1965 and 1980, covering 16 years (again, counting the base year). Generation Y, or the Millennials, or whatever you want to call them, were born between 1981 and 1995 (15 years). The newest generation on the block (who I hope we don't hear nearly as much about), Generation Z, began showing their faces in 1995 and probably ended about 2010; another 16-year period.

Based on this, the average generational time period is about 17 years.

Average the three functional time periods and the result is approximately 12 years and 10 months. For the purposes of this article, one automotive generation" is rounded to 13 years.

What Must Occur Before Full Autonomy Reigns?

Traditional, human-controlled vehicles will rule the road until two key factors meet: 1) nationwide implementation and improvement of infrastructural technology; and 2) full societal acceptance of driverless technology.

Infrastructure Technology

As best I understand driverless technology, autonomous vehicles need data. Data from other cars, data from the surroundings, data about the conditions, lots and lots of data. Part of this data must come from the infrastructure itself. Even if cars are equipped to be and are able to operate autonomously, the infrastructure must be able to help" the vehicle accomplish its mission. If the infrastructure is lacking, the vehicle won't perform as intended.

Is every city, town, village or hamlet equipped with the necessary technology? How long will it take to equip them? The amount of time required to equip the municipalities is not just a function of the availability of the technology, it is also a function of money.

Societal Acceptance

Those of us who grew up watching Knight Rider dreamed of owning a car like KITT (which stood for Knight Industries Two Thousand); one that could come when we called it and drive for us when we wanted to do something else (like sleep or read). Of course, some of us also wanted a car that was bullet proof and shot flames from a flame thrower hidden in the back but I digress.

But the reality is, most of us would feel more than skittish turning over full control of our car to the car. Human nature generally won't allow such a drastic departure from tradition; this is one reason auto manufactures make incremental technological changes (back to the concept of an automotive generation).

Not long ago I test drove a new vehicle equipped with auto-stop technology. As I was driving the salesman said, You've got to trust me on this. Set your speed and auto stop; take your foot off the gas and resist the temptation to hit the brake."

As we cruised along at nearly 60 miles per hour, we approached a line of stopped traffic. Of course, I wanted to use the brake and stop the car. The salesman said, don't do anything."

Guess what, the car stopped on its own. I never touched the brake. That's just one step towards fully autonomous technology, but it's one we humans are willing to accept - right now. What's next?

Several more incremental steps must be taken before we humans are willing to give up control of our vehicle. That takes time. How much? The answer depends on the factors defined by the automotive generation" concept. As a Gen X'er, I want to drive; in fact, I want a Mustang again so that I can really drive;" I'm not going to give up that joy. Gen Z (my kid's generation) or the next generation (whatever they are called) may not care about the driving experience; they may not even want to drive.

Fully autonomous vehicles will not dominate the roadways until infrastructural technology and social acceptance (or desire) converge.

How We Get There" From Here"

To move to and through the automotive generations leading to a fully autonomous society, the automotive industry must maneuver through several levels of vehicular autonomy." Each successive level presents unique liability issues and include:

Driver-controlled with autonomous assistance: This is where vehicles are now. Modern vehicles are already equipped with and utilize autonomous assistance. Some technology provides minor assistance and other technology give primary" assistance. Examples of minor assistance technology includes technology that notifies the driver when a car is in its blind spot; lane departure warnings and audible notifications when an object is close to the car. Primary" assistance technology currently in use includes technology that slows or stops the car in an emergency and autonomous, hands-free parallel parking;
Autonomous availability of key functions: The technology already exists for this level, but such technology is generally found in only a limited number of brands or the most expensive vehicles. Autonomy of key functions includes the ability of the vehicle to drive itself on major roads and return control to the driver when navigating secondary and other streets. This level utilizes advanced acceleration and breaking technology already existing; but the vehicle itself cannot predictably or safely navigate traffic lights, stop signs, or traffic conditions. A trained driver is required.
Optional vehicle autonomy: A driver is still needed for this evolutionary level; but the majority of driving decisions are turned over to the vehicle. At this level of change, the driver may simply input the desired destination and allow the car to autonomously navigate major and some secondary roads, but only in areas with the necessary infrastructure is in place. Plus, some traffic situations and conditions are beyond the capabilities of the technology;
Infrastructural technologically-limited autonomy: Vehicles have the ability to operate on a fully autonomous basis, the only area lacking is infrastructure. At this level of transition, all new vehicle technology outperforms a human driver; however, not all roads are equipped to assist the vehicle requiring a human driver be available to take control when needed; and
Fully autonomous: This is the point when vehicle technology and infrastructure technology converge. All new vehicles have the necessary technology to operate without a driver and all roads are equipped with the necessary technology to effectively drive the vehicle. No driver is needed, just a destination.

The question is, how many automotive generations are necessary to move through these five phases? Remember, the answer depends on the speed of technological development, technological installation and maybe most importantly, social acceptance.

As the driver becomes less important," the concept and assignment of legal liability may shift. But such shift may take some very interesting twists and turns.

How do You Become Legally Liable?

Before addressing the changing assignments of legal liability as the US progresses towards full vehicle autonomy, legal liability's basic concepts must be understood. We must understand how a person or entity becomes or is assigned legally liable for injury or damage.

Legal liability is liability imposed by the courts on the person or entity responsible for the injury or damage suffered by another party or individual. "Legal liability" exists when:

The wrongdoer is found guilty of "Negligent Conduct;"
The injured party suffers actual damages; and
The wrongdoer's "Negligent Conduct" is the proximate cause of the injury or damage.

(A more in-depth article on these concepts is found here.)

Does increased vehicle autonomy alter the concept of Negligent conduct"? This may be the most important question and concept in the autonomous vehicle discussion. Negligent conduct is created by the failure of the person to act or behave in the manner that a reasonably prudent person would act in the same or a similar situation. To be guilty of negligent conduct, there must be:

A duty to act or not act in a certain way; and
A breach of that duty.

As the driver becomes less and less important in or necessary to the operation of the vehicle, his or her duty changes. In fact, as vehicles become more and more autonomous, duty migrates away from the driver. To whom does the duty migrate? That's the hard question to answer.

Assigning Liability During the Progression Towards Autonomy

Warning, this is an oversimplification of legal liability assignment. An assumption is made in this initial discussion that the driver and/or the vehicle caused the accident and is, what the industry calls, at fault" for the injury or damage. Each level, or phase, of transition is considered:

Driver-controlled with autonomous assistance (Phase 1): The driver is still primarily in control and is responsible for using the technology to make better decisions. Because the driver is in control, legal liability is assigned to him or her.
Autonomous availability of key functions (Phase 2): The driver shares control of the vehicle - with the vehicle. However, the driver must make the decision when he should turn control over to the vehicle. In some situations, even if the vehicle is equipped for the conditions, the best decision is for the driver to take charge. If the driver failed to act as a reasonable and prudent person would in the same situation, he may be found legally liable because he didn't take control away from the vehicle in unusual situations. But consider the possibility for an alternative decision. Might liability be placed upon the driver because she took control away from the vehicle when the vehicle may have been better equipped to address the situation?
Optional vehicle autonomy (Phase 3): At this transitional phase, it may be proven that for many, if not most, situations, the vehicle is much better able than the human to operate safely. However, there are still situations in which the human must take control, such as in locales that do not have the necessary infrastructure and in complicated driving situations. If the driver fails to take control when deemed prudent by the court, he may be held legally liable for any injury or damage because he let the car decide. And like stated above, is there a possibility that the driver could be held legally liable because he took control away from the car? But this level adds a new twist, the technology fails. If it is proven that the driver was correct in allowing the vehicle to be in control, but the car still caused an injury or damage; what then? Who is assigned liability? Is it the manufacturer? Is it the software company (if different than the manufacturer)? On the garage that last worked on the program? Or is it assigned back to the owner because the manufacturer, software company or other entity had her sign a contract requiring her to indemnify and hold them harmless for any injury or damage resulting from the failure of the technology? Or will the courts or government step in and protect these entities from liability? More questions than answers.
Infrastructural technologically-limited autonomy (Phase 4): The driver may be found legally liable only in those situations when the car warns him or her that they are entering an area where the technology doesn't support the fully autonomous use of the vehicle. If the driver fails to take control, she will likely be held liable for injury or damage caused as a result. But again, what if the technology fails? and
Fully autonomous (Phase 5): A reasonable assumption is that no liability will be placed on the passenger" (as there is no driver). If, and some say this is a big IF," the vehicle is involved in an at-fault accident, the technology is at fault. But again, who would be assigned blame? The manufacturer, the software company, the municipality (for failure to maintain the infrastructure), the high-tech garage that worked on the computer last? Or, will owners be asked to contractually protect these entities?

As drivers have or take less and less control, liability may shift. Initially, driver and vehicle share responsibility for vehicle operation (with more and more responsibility moving to the vehicle as we progress through the phases). Whether the driver/owner is held legally liable or not may depend on the decisions the driver makes to give up or take control of the vehicle.

Once the car/computer is in total control, who is assigned liability if/when an accident occurs remains a mystery. How many defendants might be on the stand? And how long might it take to decide who is responsible? And the last question, how long might the injured party have to wait before being indemnified?

As stated, the above is a simplified scenario. A more typical scenario during these transitional phases will likely involve vehicles at different phases of this transition. Because of the concept and application of automotive generations, one vehicle may be a phase 2" vehicle and the other a phase 4" vehicle. When two levels of technology are involved, assigning liability may become more complicated. Technogeeks are guaranteed to assert that the vehicle with the highest level of technology is certainly the victim of the vehicle with the lowest level of technology. On the surface, this sounds plausible, but both phases (2" and 4") still require human intervention, though at different points. Because humans are involved, there still exists the question of who is legally liable. Plus, the technology may fail (I just heard a disturbance in the force").

Ultimately, assigning legal liability may become more difficult and take longer.

Nor an Overnight Change

This transition won't take place in the next few years; the US is still years away from fully autonomous vehicle. But between now and then, there are many unknowns none of us can answer - with certainty. These curves and forks in the road include:

Will the auto policy wording have to change and adapt?
Will the concept of legal liability related to auto accidents have to change?
Will the court system have to change?
Will government involve itself in the transition with forced upgrades of technologically older" vehicles?
Will consumers be required to enter indemnification and hold harmless agreements with the technology providers?
Will municipalities find it necessary to include driverless technology as part of their cyber coverage?
Will a no-fault type system become the norm?
Will autonomous technology costs follow historical trends where early editions being extremely expensive and dropping during the multiple generations of development making tech costs negligible?
Once phase 5 is hit, how much better might technology become over the following 10, 20, or 30 years.
Will taxes increase to pay for the technological infrastructure?
Will taxes increase to recoup the lost revenue historically generated from tickets given for speeding and other moving violation?
Since the cars are constantly monitored, would there be any need for annual inspections?
Will there be on-the-street parking, or will cars just drive around until the driver is ready? Will there be a centralized parking deck that all cars travel to while awaiting the driver to summon it?
Might oil changes occur in the middle of the night while the driver is sleeping? Will this necessitate all night auto service facilities? Same with gas stations. Will cars fill up for us while we are doing something else?
Will car ownership drop? Will ours become a car-sharing society where no one owns a car, just summons the closet one to go where we need to go (Uber and Lyft on steroids)?
Will ownership become state or corporate rather than individual? If so, who is liable? If state-owned, will sovereign immunity apply?

It seems we are two to three automotive generations away from full autonomy. But hold on! Twists and turns and the unknown ahead.

Final Disclaimer

As you may have noticed, this article's focus is the personal auto exposure; the advancement of commercial autos was not considered. However, as Ron Berg, executive director of IIABA's Agents Council for Technology (ACT), pointed out, commercial fleets are much further down the road to autonomy than private passenger vehicles (the fleet" of personally-owned cars). Commercial trucking, in particular, is moving much more quickly to fully autonomous fleets than any other segment.

Because commercial trucking fleets are advancing more quickly towards autonomy, the phases detailed in this article will be arrived at sooner and moved through faster than detailed. One reason is that the need for technological infrastructure is more condensed. Trucking requires the necessary infrastructure between terminals only rather than the entire city or town to accomplish full autonomy.

Although the time frame may be shortened (1 to 1 automotive generations rather than two or three), the same issues and questions apply to these fleets. And one other issue is created by commercial trucking's move toward autonomy, will the workers' compensation exposure change? Just the final question as you contemplate this transition.

Last Updated: September 13, 2019
Original Publication: September 15, 2017

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