Driverless cars introduce new questions regarding liability, fault, and responsibility for car accidents with no easy solutions. Driverless are filled with promise, if the future peddled by technologists, governments, and companies are realized. Proponents of the driverless cars tote them as a solution for traffic, carbon emissions, and car accidents. However, there is a long road to go before the United States becomes 100% driverless car and in the meantime, driverless cars must learn how to interact with human drivers who are prone to errors and accidents.
There will be decades of interaction between driverless cars and human-operated vehicles which could lead to thousands or even millions of accidents. Until the 100 percent, driverless car future is realized, the United States must grapple with these questions of liability, responsibility, and fault.
Liability for car accidents breaks down into two competing systems: fault and no-fault. Currently, 38 states are fault states and 12 states (and Puerto Rico) use no-fault insurance.
Under “fault” insurance systems, the driver (usually drivers) that are responsible for the car accidents are held accountable and either they or more likely, their insurance company must pay for the damage resulting from the crash. The “at fault” driver’s insurance rates rise, thus allowing the insurance company to recoup some of the loss. Ultimately, the “at fault” driver is held responsible.
Under the “fault” system, liability is also ratably apportioned based on the level of culpability. Accidents are rarely 100 percent one person or the other’s fault. Usually, it is a mixture of both. In these situations, both drivers and their insurance companies, pay for some of the damages. The cornerstone of the “fault” insurance system is that the “at fault” driver(s) pay for the damage caused by the resulting accident.
Conversely, a “no-fault” system disregards responsibility for an accident. Rather, insurance companies are required to pay for the damage to their insured – regardless of fault. Thus, the operative facts are only whether an accident occurred and the extent of the injuries incurred. The insurance company is then expected to remit payment to its insured to cover expenses.
The “fault” system pits the responsible drivers and their insurance companies against one another, whereas the “no-fault” system pits the insurance companies against their own insured drivers. Under “fault” systems, the responsible party bears the burden of compensation victims. Conversely, under “no-fault” systems, the adversarial system is abandoned in favor of (a nominally) more efficient and faster system of compensation that is intended to reduce the burden on the injured and cost to insurance companies. The reality is far more complex.
Fault and No-Fault are Poorly Suited to Address Driverless Cars
Both of these systems are poorly suited to address the concerns raised by driverless cars. For instance, the “fault” system is primarily concerned with ascertaining responsibility and thereby assigning liability. However, if a driverless car is involved in an accident, who is ultimately at fault? Is the car manufacturer responsible? Is it the designer of the autonomous software? Is it the telecommunications company for losing signal? The “fault” system would demand a costly and invasive investigation every time there was a car accident to ultimately determine which of the components failed (assuming there was a failure) and thus which entity is responsible.
Under “no-fault” insurance, these costly investigative costs are nominally avoided because responsibility is not determinative of who pays for damages. However, the current “no-fault” system assumes that the operators of cars are humans. With driverless cars, if the driver is never responsible, does that mean no driver needs to obtain no-fault insurance? Do insurance companies need to offer policies to vehicle manufacturers, software designers, or ride-sharing companies? No-fault systems still depend on the implicit assumption that humans are ultimately responsible for their vehicles, driverless cars abandon that concept entirely.
One concept being explored is legislating that the owner of the vehicle is ultimately responsible for any harm caused. However, that assumption shifts the burden of maintaining the autonomous program onto the individual owners, who are incapable of maintaining and correcting it. That system works for human-operated cars because humans are in control and are responsible for maintenance. A human operator could take the best car of his vehicle but ultimately the program runs the car, and the human operator cannot fix or change the program.
Another potential solution is blending products liability claims with auto insurance claims. Products liability allows consumers injured by a defective product to sue any company involved in the manufacture, sale, or delivery of the product. The consumer simply needs to establish that the product was (1) defective and (2) that is caused an injury. Once that occurs, the consumer can collect compensation and the “at fault” companies are free to sue one another to determine ultimate responsibility.