Riyush Thakur

IR 2/ Eng 10 G/T
1/15/19
Turn in #14
Self-Driving Cars: Who should be held liable?

12,000 years ago, mankind conceived the wheel. Yearning to create, mankind developed

the pulley, the aqueduct, the pyramid, the skyscraper, the combustion engine, the rocketship, and

now the self-driving car. According to Forbes Magazine,” By 2040 expect our roads fully

patronized by self-driving cars,”another testament to human progress and ingenuity. However,

before envisioning a new piece of futuristic technology, consumers must consider new liability

legislation conducive to impartial legal standards. Currently, liability cases are inefficient and

costly, creating a need for a universal liability precedent. The first factor to consider is the degree

of capability of the self-driving car, organized by the SAE automation scale (Paulson 1).

Respectively, the scale categorizes all cars on a spectrum ranging from 0, or manual, to 5, or

completely automatic. An established legal precedent must impartially hold the perpetrator

accountable and consistently apply to a wide variety of cases. In order to ensure consistent

legal standards for emerging self-driving cars, accident liability for self-driving car crashes

should depend on a car’s ability to react to abrupt, accident-prone scenarios, drawing a

clear distinction between driver’s and manufacturer’s liability.

At a minimum, the actions of predesigned autonomous car must be held to a higher

standard than fallible human action subject to fear and panic. On the other hand, self-driving cars

have a plethora of different tools and information without spontaneous emotions, leading to

judicially consistent liability rulings. For example, self-driving cars employ an array of radars,

sensors, and cameras, resulting in an estimated 93% decrease in overall car accidents (Bisant 3).

An overwhelming majority of the remaining 7% of car accidents accounts for human negligence,

a ubiquitous and unsolvable phenomenon in practice. Currently, manufacturers register self-

driving cars under a certain classification at the discretion of The National Transportation Safety
 Riyush Thakur
IR 2/ Eng 10 G/T
1/15/19
Turn in #14
Board, requiring a certain level of accountability on the driver. Ultimately, the driver has a right

to complete transparency when purchasing a self-driving car. However, the privilege of current

self-driving cars comes with a responsibility: understanding the self-driving car’s enumerated

function and driver’s oversight. “A failure to acknowledge these limitations results in modern car

accidents” (Gerdes 15).

While the total number of accidents is likely to decrease because of self-driving cars, the

cause remains the same: human negligence. For example, human negligence caused a tragic

accident in Tempe, Arizona on March 18, 2018. The accident, as described in the preliminary

police report, proves some key factors and implies specific conclusions. The Volvo XC90

rightfully recognized a pedestrian on the road, but the car was previously disabled from utilizing

its emergency braking function. Also, the operator failed to respond to the accident (Pavinski 2).

Unfortunately, the self-driving car accident, arguably caused by operator incompetence, killed

the pedestrian Elaine Herzberg. The crash currently has not been officially settled in court, but

allegations have already been waged on Uber Technologies. Regardless of the enhanced function

of the automobile, the operator is not free from liability charges because the operators are not

bystanders (Department of Transportation, 2018). However, the court will have to answer a

relatively novel question: “To what extent is Uber’s self-driving responsible for the crash?”

While punishments for human perpetrators are already determined, manufacturer penalties are a

relatively new concept since potentially more liability can be administered. Human mistakes can

never be completely fixed, but manufacturing failures, leading to avoidable accidents, are not as

excusable or ethical. Innovative self-driving cars provide the most utility to drivers through

technology, so, by the same token, self-driving cars should incur more strict penalties in court.

While penalties are at the discretion of the judge, the criteria for assessing guilt must be
 Riyush Thakur
IR 2/ Eng 10 G/T
1/15/19
Turn in #14
previously delineated for a jury to follow. In current car accidents, the ambiguous role of the

driver usually prevents courts from asserting any verdicts by simply identifying the category of

the self-driving car, but “the undeniable enumerated obligations of the self-driving car reaffirms

a court’s ruling” (Fleetwood 13).

The crash in Tempe spurred broader debate beyond the sphere of manufacturers and

policymakers. Ordinary consumers began considering the implications of liability charges as

indicated by emerging awareness among potential consumers. In a study conducted on over 700

drivers in the state of California, a statistically significant 63% or respondents expressed a degree

of concern over potential liability charges. The concern can be simplified into a perception that

driverless cars ultimately replace the driver. In simplest terms, the car is perceived as a substitute

responsible for all regular activities and functions performed. It reasonably follows that the

driver should not be held responsible for a crash occurring under the oversight of the car. An

increasing demand for liability protection could be fulfilled by special insurance products, but it

is unlikely to influence court rulings because the interpretation of the law is independent of

public opinion. The first basis standard must be applied equally to everyone, regardless of the the

driver’s control, or else the standard falls apart.

Adjudicating accidents differently, depending on the role of the driver compared to the

role of the car, leads to inconsistent verdicts. The mistakes of manufacturers ultimately hurt the

physical health of their customers, who suffer the consequences of design faults out of their

control. Moreover, penalties should bear more weight on the manufacturer, a party that avoids

lifelong injuries from their own mistakes. Computer influenced self-driving cars lack the quick

reactions of a cognisant driver, but self-driving cars also possess the information to completely

nullify the need of quick reactions from the driver. Waymo’s current cars, “essentially monitor
 Riyush Thakur
IR 2/ Eng 10 G/T
1/15/19
Turn in #14
surroundings within about a 100 meter radius, and that number keeps going up” (Rabin 2). The

self-driving car’s range of information steadily improves over time. On the surface, a court might

unfairly adapt old criteria directed at a traditional driver, such as reasonable doubt, regarding the

nature of a driver’s knowledge instead of a vehicle's gradually improving capabilities. In

comparison to self-driving cars, humans also encounter a wide range of information on the road,

and the penalties for negligence in court reflect the decisions that drivers failed to make despite

the information at their disposal (Lin 13). In practice, courts tend to declare lenient verdicts if a

driver encounters a dark environment where he lacks information. If the capabilities of self-

driving cars to acquire information keep improving over time, then the liability for failing to

meet the expectation should also escalate over time.

When rulings depend on a car’s ability to react to accident-prone scenarios,

manufacturers are incentivized to implement a system of ethical behaviors in a self-driving car.

Ethics proposals don’t currently exist, creating an opportunity to mutually benefit the credibility

of a manufacturer and the safety of a driver. Dr. Healey, a senior researcher at Intel Laboratories,

found “significant mutual relationships between the most optimal self-driving designs and the

code of ethics used to regulate manufacturing” (1). Dr. Healey’s research team prioritizes cost-

efficiency and safety when designing a self-driving car. However, they are willing to

compromise cost-efficiency for driver safety, best enforced by a code of ethics. (Santoni 416)

Ultimately, it is in every stakeholder’s best interest to compel manufacturers to develop

emergency response systems. As a result, manufacturers will predictably incur less liability on

the basis that they conceived a proactive emergency response system, and drivers suffer fewer

accidents.
 Riyush Thakur
IR 2/ Eng 10 G/T
1/15/19
Turn in #14
Manufacturers also stand to gain a reputation that values the safety of its customers and

allows for a better relationship between driver and self-driving car. Consequently, an ethical

code becomes attainable through a scope of utilitarian and preceding legal ideas. Under certain

conditions, a driver’s actions are impulsive yet justifiable as demonstrated by a landmark court

case known as Ruiz v. Foreman. During the case, Ruiz crashed his car into private property in

order to avoid a seemingly worse car accident. This case set a precedent known as

inconsummerability, the rational sacrifice of something over something else. Ruiz made a quick

and ethical judgement to crash his vehicle, but he still ended up causing severe private property

damage. However, he was acquitted because his value judgements trapped him into an

irreconcilable car accident (Lin 14). This case set an inconsumerity precedent which could be

used not only to justly adjudicate liability cases, but also to prevent as many severe accidents as

possible. Santoni, an experienced legal scholar, summarizes inconsumerity simply: “The

intentional programming of a vehicle to damage property (included the vehicle itself) to avoid

damaging persons may be allowed and even made obligatory” (400).

Ethical systems lead to accidents with minimal damage and should be held accountable

by a court of law. Predesigned driving systems have the potential to avoid inconsummerity

charges, or charges regarding the moral decisions of the driver, altogether. Dr. Healey and other

researchers “essentially want a centralized machine functioning with the benefits of a human

mind in order to perfectly micro manage the self-driving cars” (3). While the goal seems

impossible with modern technology, a single presiding system, governed by a machine with the

ability to make value judgements, nullifies the need for scrutiny into the ethics of a driver. (Lin

13). Since future technology can’t be determined at this time, proposals for future liability cases

should encompass the worst-case possibilities conducive to accidents. Dr. Healey’s goal of a
 Riyush Thakur
IR 2/ Eng 10 G/T
1/15/19
Turn in #14
centralized machine should transfer over to the possible liability cases she may encounter.

Luckily, Dr. Healey already considers the ethics of her proposed innovation, but not every

manufacturer prioritizes the excess accident liability they may suffer without an ethical

emergency prevention system. As a result, the most competitive manufacturers will inevitably

strive to implement a robust accident prevention system as there is nothing more important than

consumer safety.

If self-driving car accidents are adjudicated by the car’s ability to react to accident-prone

scenarios, then the court has an empirical and universally applicable standard to declare a court

case beyond a shadow of a doubt. Accident-prone scenarios have an identifiable reaction from a

self-driving car. If the car’s reactive systems, such as emergency braking, fail to ethically

minimize damage in an inevitable car accident, then manufacturers should be held liable. On the

other hand, if self-driving cars appropriately and ethically act within their ability, then the driver

should be held liable. Obviously, courts will always have to thoroughly analyze a car accident in

order to come to a ruling, but “broad guidelines focused on the specific capabilities and actions

of self-driving cars serve as a template which local courts can adopt and cater to their unique

local region” (Etzioni 13). States like California are already taking steps to selectively

incorporate their own legislation based on the design and future research of self-driving cars. The

only limiting principle is that legal precedent must draw a clear distinction between what

constitutes driver’s liability and what constitutes manufacturer’s liability. Without a clear

distinction, a grand jury won’t have a direction to base its verdict. Nonetheless, research is

rapidly advancing and the law will always adapt to hold stakeholders accountable for recklessly

squandering the possibilities of self-driving cars.

 Riyush Thakur
IR 2/ Eng 10 G/T
1/15/19
Turn in #14
In the coming decades, innovation driven by humanity possesses the ability to harness the

self-driving car and transform the dynamics of transportation. However, the consumer is

reluctant to accept self-driving cars partly due to the potential liability risks associated with a

self-driving vehicle. In order for citizens to confidently embrace self-driving cars, there must

exist a reliable and universal legal guideline. Overall, the standard for self-driving accident

liability is conclusively met if liability is determined by the intricate performance of self-driving

cars in a tense, accident-prone scenario. Ultimately, this guideline reflects consistent and fair

verdicts, encourages ethical manufacturing, and creates an empirically practical standard to

follow. If courts judge liability on the premise of a car’s ability to react in accident-prone

scenarios, then universal self-driving cars will truly become a monumental and attainable goal in

society.
 Riyush Thakur
IR 2/ Eng 10 G/T
1/15/19
Turn in #14
Work Cited

Bisant, Okaru. Self-Driving Cars.

https://www.naic.org/cipr_topics/topic_self_driving_cars.htm. “Cars in the Legal
Ecosystem.” Minnesota Journal of Law, Science and Technology, vol. 16, 2015, p.
619, Accessed 14 Nov. 2018.

Etzioni, A. and O. Etzioni, Incorporating Ethics into Artificial Intelligence, The Journal of
Ethics 21(4) (2017), 403–418.

Fleetwood, Janet. “Public Health, Ethics, and Autonomous Vehicles.” American Journal
of Public Health, vol. 107, no. 4, Apr. 2017, pp. 532–37,
doi:10.2105/AJPH.2016.303628.

Gerdes, Chris. The Future Race Car -- 150mph, and No Driver.

https://www.ted.com/talks/chris_gerdes_the_future_race_car_150mph_and_no_driv
er. Accessed 22 Oct. 2018.

Glancy, Dorothy J. “Autonomous and Automated and Connected Cars - Oh My: First
Generation Autonomous Cars in the Legal Ecosystem.” Minnesota Journal of Law,
Science and Technology, vol. 16, 2015, p. 619,
https://heinonline.org/HOL/Page?handle=hein.journals/mipr16&id=637&div=&collect
ion.

Gramlich, John. “Americans Had Concerns about Self-Driving Cars before Fatal Arizona
Accident.” Pew Research Center, Pew Research Center, 21 Mar. 2018,
www.pewresearch.org/fact-tank/2018/03/21/americans-had-concerns-about-self-
driving-cars-before-fatal-arizona-accident/.

Healey, Jennifer. If Cars Could Talk, Accidents Might Be Avoidable.

https://www.ted.com/talks/jennifer_healey_if_cars_could_talk_accidents_might_be_
avoidable. Accessed 22 Oct. 2018.

Lin, P., Why Ethics Matters for Autonomous Cars. In Autonomes Fahren. Technische,
rechtliche und gesellschaftliche Aspekte, M. Maurer, J. C. Gerdes, B. Lenz, and
H. Winner (Eds.), Springer Vieweg, Berlin, 2015, 69–85.

Paulson, Scott. The Future of Self-Driving Cars – Richmond Journal of Law and
Technology. https://jolt.richmond.edu/2017/04/10/the-future-of-self-driving-cars/.
Accessed 7 Nov. 2018. Oct. 2018.
 Riyush Thakur
IR 2/ Eng 10 G/T
1/15/19
Turn in #14
Pavinski, Sergei. Preliminary Report Released for Crash Involving Pedestrian, Uber
Technologies, Inc., Test Vehicle. https://www.ntsb.gov/news/press-
releases/Pages/NR20180524.aspx. Accessed 18 Nov. 2018.

Rabin, Robert. Science and Technology Law Review | Vol 16 | No. 3.

https://scholar.smu.edu/scitech/vol16/iss3/. Accessed 30 Oct. 2018.

Regan, Michael & Cunningham, Mitchell & Dixit, V & Horberry, T & Bender, A & Weeratunga,
K & Cratchley, S & Dalwood, L & Muzorewa, D & Hassan, A. (2017). Preliminary findings
from the first Australian National Survey of Public Opinion about Automated and
Driverless Vehicles. 10.13140/RG.2.2.11446.80967.

Santoni de Sio, F., Killing by Autonomous Vehicles and the Legal Doctrine of Necessity,
Ethical Theory and Moral Practice 20(2) (2017), 411–429.

“US Department of Transportation.” US Department of Transportation, Regulatory

Guidelines, www.transportation.gov/AV Accessed 7 June 2018.