Automated Driving Needs New Legal Mechanisms, Says Professor Kenneth Abraham
A new legal regime will need to govern the new era of automated vehicles, says University of Virginia School of Law professor Kenneth Abraham.
Abraham, one of the nation’s leading scholars and teachers in the fields of torts and insurance law, explores the issue in a forthcoming Virginia Law Review article co-written by Stanford Law School professor Robert L. Rabin.
Abraham has been a consulting counsel and an expert witness in a variety of major insurance coverage cases. His torts and insurance textbooks are used by law students across the country.
As self-driving cars become more common, existing tort doctrines will become obsolete, the authors argue. Abraham recently discussed the legal challenges facing automated vehicle use and devising the new mechanism to govern accidents and injuries.
Why did you write this article?
Most auto accidents today are caused by drivers. Drivers, including drivers of taxis and ridesharing vehicles (and their employers), are liable only for harm caused by their negligence. Once there are driverless cars, most accidents will not be caused by drivers, but by cars. Our current liability system is not set up to deal with this transformation. Although auto manufacturers are liable for harm caused by the defective design of a vehicle, it is only the rare accident that is the result of vehicle design.
Two people have recently died in accidents involving semi-automated vehicles. What challenges do victims face if they want to sue manufacturers of this type of vehicle?
They have to prove that the accident was caused by something defective in the design of the autonomous driving system. This essentially means proving that there is something wrong with the software that operates the system. This is difficult — and sometime expensive — to do, since it involves reconstructing what happened in the digital world’s application to the real world.
Can you briefly explain your proposed new system, “Manufacturer Enterprise Liability (MER)”?
We think that once there is a critical mass of self-driving cars on the road, the manufacturer should automatically be liable for all injuries “arising out of” the operation of the vehicle. It wouldn’t matter whether an accident was the result of a defective design. So there would not be any need for a claimant to prove that anything was wrong with the vehicle. It is already predicted that self-driving cars would reduce the accident rate by as much as 80 percent, so this liability would not be a major burden on manufacturers. And they could pass the cost of MER on to customers in the form of a slightly higher purchase price. But in the meantime, drivers would be saving a lot of money from not having to buy auto liability insurance anymore. We’d have exceptions for accidents caused by terrorism, hacking into the car’s software, etc.
How else could technology and innovation change laws involving automobiles in the future?
There is already a lot of driver-focused safety technology that is optional but could be required. There are interlock systems that shut off vehicle use by inebriated drivers; there is technology that can block texting while driving; and there are drowsiness-detection systems capable of monitoring and warning when a vehicle’s movements indicate a prospective concern. Widespread introduction of such systems could improve driving safety while we wait for driverless cars to take over. If these things were mandatory, that would create stronger incentives for the invention of even more such technology.