The Common Law and the Self-Driving Car

Abstract

In law, as in life, change is a constant. From the horse and buggy, to the locomotive, and now to the car, the way we move on land keeps changing. And in days and years to come, it is set to change even more. We are on the cusp of a new era—the self-driving car era. The self-driving car era will remove the driver from the driving enterprise. With that change comes hard questions. For one, who will we look to for liability for self-driving car collisions? Our present car-collision-liability framework is driver-centered. We focus on whether one (or more) of the drivers was at-fault. This driver-centric framework answers many (if not all) liability questions from fender-benders, traffic infractions, and the like. The impending driverless future, however, puts this well-worn liability framework in question. In a driverless future, who will be liable and why? This paper seeks to answer those questions. While some states have authorized self-driving cars, we still do not have a robust legislative liability framework in place. And yet, self-driving cars are already on American roads and more are on the way. Self-driving cars now deliver pizzas, groceries, give rides, and take over the driving function from willing drivers. But some self-driving cars have been involved in fatal accidents and serious traffic infractions. It takes little imagination to foresee that those incidents won’t be the last. As a result, until legislatures enact comprehensive liability frameworks, the common law will have to perform its limited function to provide answers in real cases and controversies based on existing rules. E.g., OKLA. STAT. TIT. 12, §2 (West 2021). The way of the common law, Oliver W. Holmes Jr. and Benjamin N. Cardozo told us, is reasoning by analogy, informed by tradition. Just as the common law analogized from longstanding rules about defective products generally and made them applicable to defective cars, it will likely have to apply those same rules to another form of car, the self-driving car in real cases and controversies. This paper outlines an analytical blueprint based on longstanding common law rules to address this new driverless phenomenon. This paper considers the common law liability continuum starting with the person in the driver’s seat who engages the self-driving feature, to the owner who uses her self-driving car as a common carrier, to the manufacturer of the vehicle in case of a product defect. Drawing examples from (and analogizing from the common law’s response to) the automated elevator, cruise control, autopilot, runaway and unmanned vehicles, and ships, this paper shows that the common law has longstanding answers to even self-driving cars. This paper also analyzes whether the common law rules that extend legal personality (the right to sue and be sued) to ships, for example, could also apply to another form of conveyance—i.e., the self-driving car.