Marchant and Bazzi, ‘Autonomous Vehicles and Liability: What Will Juries Do?’

ABSTRACT
Autonomous vehicles (‘AVs’) that can be operated without a human driver are now being tested on public roads across America and are soon expected to be commercialized and widely available. One of the greatest roadblocks holding up more rapid deployment of AVs is manufacturers’ concerns about AV liability. This article provides a real-world assessment of AV liability risks, and concludes that manufacturers are indeed rightfully concerned about the extent and impacts of liability on AVs.

The article first examines the application of product liability doctrine to AVs in various accident scenarios, drawing upon previous vehicle product liability cases. While AV manufacturers will likely and properly be held responsible for most accidents where the vehicle itself is responsible for the crash, the concern is that AV manufacturers may be sued and often held liable even when the AV was not the cause of the collision. This is because AVs have a much greater capability to avoid collisions than does a human-driven vehicle, and thus in almost any crash scenario it may be possible to argue that the AV should have detected and avoided the impending crash. Thus, even though the total number of vehicle accidents should decrease with AV deployment, the share and even net value of liability may go up for AV manufacturers.

Next, the article considers jury tendencies and psychology, and concludes that jurors will be particularly harsh on AVs that draw on exotic artificial intelligence technology, and which may be involved in accidents that harm people notwithstanding their claims of improving overall vehicle safety. These factors are likely to result in more frequent and larger punitive damages than in past motor vehicle product liability. Given these finding, the article concludes by recognizing the need for some type of public policy intervention to prevent the tort system from having the contradictory effect of harming public safety.

Gary Marchant and Rida Bazzi, Autonomous Vehicles and Liability: What Will Juries Do? (2020) 26(1) Boston University Journal of Science and Technology Law 67.

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