A Model for Tort Liability in a World of Driverless Cars: Establishing a Framework for the Upcoming Technology

Abstract

The development of driving support and cruise assist systems in the automotive industry has been astonishing, accelerating dramatically in the last ten years: since the first DARPA Urban Challenge field tests have multiplied in the US – in California alone, there are currently 39 companies testing self-driving cars – and the once remote prospect of “driverless” vehicles becoming commercially available (coming to market) (in the next future) might not be so far from reality. A broad range of scientific studies suggests the implementation of fully automated driving systems may come soon. Highly Automated Vehicles (HAVs) are likely to profoundly transform our social habits, and to revolutionize our way of interacting with the surrounding environment; in addition, legal scholars have already outlined how automated vehicles create a multi-level challenge in terms of regulation, capable of impacting on different areas of the law. One of the areas where research is much needed is tort liability: in addressing the regulation of accidents caused by automated cars, jurists must assess whether tort liability rules – as they are currently shaped – are suited to govern the “car minus driver” complexity, while simultaneously holding on to their theoretical basis. Whether the current framework proves itself to be inadequate and irreparably “out of tune” with the new circulation dynamics, the only alternative will be to amend or renew it. In light of these considerations, our aim is to present a hypothetical system for liability arising from road accidents caused by driverless cars. This model should be interpreted as a theoretical guideline, which must be adapted and declined in accordance with the specific attributes entailed within each legal system. Consistently with this premise, the article is outlined as such: in Part I we set out (and argue in favour of) some assumptions on which analysis rests. The main postulates that we embrace are that: a) we will ultimately reach a degree of technology that is capable of entirely substituting the human driver on the road; b) a fully automated driving system will be able to manage the “behaviour” of the vehicle safer than its “organic” counterparty; and c) the most promising strategy in addressing the HAVs regulation is to focus primarily on investigating the risks involved in the circulation of “totally” automated cars – where the human driver has no role – rather than addressing already existent (or forthcoming) intermediate support technologies. In Part II, we present the main options available to lawmakers in allocating liability for road accidents caused by HAVs. Traditionally, four leading “players” have been traditionally considered – in the academic debate as well as in the regulatory proposals enacted by governmental and independent bodies – “potentially responsible” in case of road accidents involving HAVs: the driver of the car; its owner; the government (or, widely speaking, the general public) and the manufacturer of the vehicle: after analysing each potential figure, we conclude that the manufacturer is the most appropriate figure to be held liable in the case of road accident involving driverless cars. Part III of the article investigates, on the basis of the background established in Part II, the most widely preferred solutions proposed to regulate a hypothetical liability system for manufacturers: on one hand, we consider the role that rules on product liability can play, devoting our attention both to the EU and to the US regulation; on the other hand, we evaluate the impact of different strict liability options. In particular, as for the latter, we then proceed to a specific investigation of the hypothetical system proposed by Kenneth Abraham and Robert Rabin in their article “Automated Vehicles And Manufacturer Responsibility For Accidents: A New Legal Regime For A New Era” (2017). In Part IV, after “laying down the ground” through the analysis of previous solutions for regulating tort liability in accidents caused by Highly Automated Vehicles, and after underlining how none of them seems entirely satisfactory, we present our proposal for allocating risks in the driverless car world. We will illustrate, in particular, how a “two-steps” system – operating through a negligence assessment and a reward fund – represents an optimal solution to mediate amongst the conflicting needs in the regulation of driverless vehicles. In Part V, finally, we draw some Conclusions on the basis of the various aspects addressed in our analysis, and present some alternatives we considered (and excluded) in developing our system.