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November 20, 2019 Feature

Can States Steer Clear of Liability for Accidents Involving Autonomous Vehicle Technology?

By Gail L. Gottehrer and Ronald J. Hedges

The societal benefits of autonomous vehicle technology are made clear by statistics that show that almost 40,000 people die in automobile accidents in the United States each year, and that 94 percent of those accidents are the result of human error. Autonomous vehicle technology has the potential to dramatically reduce the number of accidents and the number of associated fatalities and injuries because, simply put, computers don’t get intoxicated or tired, text while driving, or engage in any of the numerous other dangerous behaviors that human drivers do.

In addition, autonomous vehicle technology offers the promise of mobility for people who are unable to operate the motor vehicles that are being sold today. While not currently available, fully autonomous vehicles can provide new modes of transportation and independence for legally blind people, the elderly, and individuals with physical disabilities that limit the use of their limbs.

State by State Regulation . . . and Litigation

In the absence of autonomous vehicle technology laws at the federal level, states have enacted their own laws relating to the testing of autonomous vehicle technology on public roads and for the operation of vehicles using autonomous vehicle technology on public roads. States have taken various approaches to this emerging technology.

Earlier this year, two lawsuits were filed against states in connection with autonomous vehicle technology-related accidents. One lawsuit was brought against the State of California in connection with the death of the driver of a Tesla Model X in autopilot mode, and the other was brought against the State of Arizona and the City of Tempe in connection with the death of a pedestrian who was struck by an Uber vehicle operated by autonomous vehicle technology.

Huang v. California

The California action, Huang v. Tesla Inc., the State of California, et al., No. 19CV346663, Cal. Super. Ct., Santa Clara Cnty., Apr. 26, 2019 (Huang Complaint), arises out of the March 2018 death of Walter Huang, who died after his Tesla Model X, in “autopilot mode,” struck a median on a highway in Mountain View, California. (Tesla describes its autopilot-enabled cars as being Level 2 vehicles on the SAE 0–5 automation scale.) The complaint alleges that as Huang approached the paved gore area that divided the travel lanes of U.S.-101/State Highway (SH-85) from the exit ramp, the autopilot feature of the Tesla turned the vehicle to the left, out of its lane, and into a concrete median.

The plaintiffs contend that the State of California is liable for negligently and carelessly creating a dangerous condition on the highway that resulted in Huang’s death. They allege that the State was negligent in its “ownership, maintenance, inspection, repair, and control” of the section of highway where the collision occurred, and that as a result of the State’s negligence, the State property where the collision occurred constituted a “dangerous, defective and hazardous condition of public property.” Huang Complaint, supra, at 13. According to the plaintiffs, the median that Huang collided with was supposed to have a safety device called a “crash attenuator guard,” which was designed to protect vehicle occupants from serious injury if their vehicle struck the median. This device, however, had been damaged in a collision that occurred 11 days before Huang’s accident, and the State had not yet replaced or repaired it at the time of Huang’s accident. The complaint alleges that the State acted unreasonably in failing to repair the median within the 11-day period, and the dangerous condition created by the damaged crash attenuator guard was a substantial factor in causing Huang’s death. Id. at 14.

The plaintiffs also assert a cause of action against the State for its alleged failure to discharge its “mandatory duties pertaining to the ownership, maintenance, inspection, and repairing of the incident scene.” Id. at 18. They argue that various sections of the California Streets and Highways Code imposed a mandatory duty on the State to ensure that the crash attenuator guard at issue was “promptly and properly” repaired after the earlier collision, and that Huang’s injuries were the direct result of the State’s alleged failure to promptly repair that device. Id. The plaintiffs are seeking economic damages, general damages, prejudgment interest, and the costs of suit.

Wood v. Arizona

The Arizona action, Wood v. State of Arizona and City of Tempe, No. CV 2019-090948, Ariz. Super. Ct., Maricopa Cnty., Mar. 18, 2019 (Wood Complaint), arises out of the March 2018 death of Elaine Herzberg, a pedestrian who was fatally injured when she was struck by an Uber test vehicle that was being operated in “self-driving mode” as she crossed a public road in Tempe. The plaintiffs allege that Uber had disabled several pre-installed safety features in the vehicle, including automatic emergency braking and driver alertness technologies, leaving the test vehicle operator (often referred to as the “safety driver”) responsible for monitoring the road and reading the diagnostic messages displayed by the self-driving system.

In their first cause of action, the plaintiffs contend that the State of Arizona and City of Tempe had a duty to keep their roadways reasonably safe for travel, and negligently failed to properly oversee vehicles that were testing autonomous vehicle technology on Arizona roads, like the Uber that struck Herzberg. This alleged negligence included the failure to “reasonably ascertain what engineering, design, or safety features the self-driving system would include” before permitting it on the road, and failing to screen, or assist in screening, test vehicle operators like the one who was in the Uber that injured Herzberg. Wood Complaint, ¶76. The plaintiffs claim that the State’s failure to adequately investigate the risks associated with testing autonomous vehicle technology on public roads constitutes negligence, and that they have suffered damages as a direct result of that negligence.

Similarly, the plaintiffs’ second cause of action asserts that the State and City had non-delegable duties to provide reasonably safe roads. Building on their allegation that the autonomous vehicle technology in the Uber that struck Herzberg was not reasonably safe for use on a public road, the plaintiffs conclude that the State and City “are liable for injuries related to self-driving technologies.” Id. at ¶82.

In their final cause of action, the plaintiffs argue that they sustained damage as a direct result of the City of Tempe’s negligent design of the median located near the spot where the accident took place. The complaint states that the design of the median was unreasonably dangerous because it “included brick paved walkways that were apparently designed for pedestrian use and encouraged pedestrians to cross [the road Herzberg was crossing]—without corresponding and associated crosswalks and/or street lighting appropriate for pedestrian safety.” Id. at ¶88. The complaint further states that the City was on notice that pedestrians were using the walkways to cross the road, as evidenced by the fact that it had posted a sign instructing people not to do so, and that the City could have (and should have) rectified this dangerous condition before Herzberg’s accident, as evidenced by the fact that after the accident it removed the brick walkways. The plaintiffs are seeking compensatory wrongful death damages, costs of suit, and attorney’s fees.

Looking Ahead

It remains to be seen whether the Huang and Wood cases are the start of a trend of naming states and cities as defendants in actions arising out of accidents involving autonomous vehicle technology and seeking to recover damages from these entities based on negligence theories. Whether the assertion of claims like these will affect the way states and cities approach the testing and operation of vehicles with autonomous vehicle technology on public roads, and the design and requirements of those laws and programs, are also open questions. States and cities face the ongoing challenge of ensuring public safety while facilitating the development of emerging technologies that can significantly benefit the public.

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By Gail L. Gottehrer and Ronald J. Hedges

Gail Gottehrer is the founder of the Law Office of Gail Gottehrer LLC in Stamford, Connecticut, where her practice focuses on emerging technologies, including autonomous vehicles, AI, biometrics, and robotics, and the privacy, security, and other legal issues associated with the data collected and used by these technologies. She is chair-elect of the TIPS Automobile Litigation Committee and may be reached at [email protected]. Ronald J. Hedges is a senior counsel with Dentons US LLP. He served as a United States Magistrate Judge in the District of New Jersey from 1986 to 2017. Hedges is a frequent writer and speaker on various topics related to electronic information and is the principal author of Managing Discovery of Electronic Information: A Pocket Guide for Judges, Third Edition (Federal Judicial Center: 2017). He may be reached at [email protected].