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Who Will Be Responsible in Our Driverless Car Future?

By Mark Wilson, Esq. on September 11, 2014 | Last updated on March 21, 2019

While Google has created a concept driverless car, Cadillac has decided that 2017 will be the year that we surrender to our robot overlords. That's when it will release to the general public a car with "limited automated driving capabilities." Details are very slim, but it probably won't be as terrifying as Skynet or as awesome as KITT.

With increased automation, though, comes the question: When there's an accident in a driverless car, who will be responsible? The manufacturer? The driver? What if the driver wasn't driving; should he have been? It's a thought experiment that's coming closer and closer to reality.

A Dearth of Law

Believe it or not, four states -- California, Nevada, Michigan, and Florida -- and the District of Columbia have already passed laws dealing with driverless cars. Stanford Law School's Center for Internet and Society tracks the development of such laws, which right now consists of little more than definitions, disclosure requirements, and instructions to draft rules.

Notably, the statutes say nothing about liability for an original autonomous vehicle; instead, they clarify that original manufacturers won't be liable for previously non-autonomous cars converted by third parties. Claire Cain Miller, writing in The New York Times' "The Upshot" blog, says that drivers will always be responsible for parking or traffic tickets. Collisions, though, will be a different matter: Predictably, everyone involved will be suing everyone else, from the company that made the car to the company that made the software.

Existing Products Liability Law Might Be Enough

John Villasenor, a senior fellow at the Brookings Institution, believes that driverless cars will fit soundly within the existing products liability framework of manufacturing defects, design defects, and warning defects. Of note is Villasenor's look at warning defects: "the more interesting aspect of liability in relation to warnings concerns the legally distinct issue of a manufacturer's post-sale responsibilities to provide warnings regarding newly discovered risks." This, he says, also involves software updates, which will become necessary as the car companies discover new problems and remedy old ones.

Let's Talk About Security

And then there's the risk of hacking. The FBI acknowledges that hacking could turn driverless cars into weapons, according to Bloomberg. We can't even secure voting machines; what hope do we have against cars? Of course, it's common for technology issues to be overhyped by reporters who don't really understand how scary computers work, but this time, it's safe to say that's a legitimate concern.

Liability will be a major stumbling block to getting driverless cars on the road, but let's not get ahead of ourselves: Driverless cars are still a few years off. Plenty of time for panicked 2Ls looking for law review topics to write something about them.

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