The Awkward Middle for Automated Vehicles: Liability Attribution Rules When Humans and Computers Share Driving Responsibilities

Abstract

Published in: 64 Jurimetrics 41 (Fall 2023). This essay describes a state statute which establishes when a human occupant of an automated vehicle has contributory negligence for her interactions with a driving automation system. Existing law is an insufficient basis for addressing the question of liability when a driving automation system intentionally places some burden for safe operation of an automated vehicle on a human driver. Without further statutory guidance, leaving resolution to the courts will likely significantly delay legal certainty by creating inefficient and potentially inconsistent results across jurisdictions due to the technological complexity of the area. To provide legal certainty, the approach recommended uses four operational modes: testing, autonomous, supervisory, and conventional. Transition rules for transfer of responsibility from machine to human clarify at what times a computer driver or human driver has primary responsibility for avoiding or mitigating harm. Importantly, specifying clear parameters for a finding of contributory negligence prevents the complexity of machine/human interactions from creating an over-broad liability shield. Such a shield could deprive deserving plaintiffs of appropriate recoveries when a computer driver exhibits behavior that would be negligent if a human driver were to drive in a similar manner.

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Keywords: automated vehicle, autonomous vehicle, highly automated vehicle, J3016, J3018, negligence, contributory negligence, robo taxi, robotaxi,

JEL Classification: K13