They’re Coming for Your Cars…

PrawfsBlawg – by Tracy Hresko Pearl

A little over a year ago, as I became fully immersed in my research about driverless cars, I had a conversation with a colleague in which I managed to convince him (I think) that mass adoption of fully driverless vehicles will be an overwhelming net positive for society.  I talked about how these vehicles will dramatically improve highway safety, reduce traffic, increase productivity, and enhance the independence of disabled and elderly individuals.  As the conversation wound down, however, he noted that, despite everything I had said, he would always love driving.  He asked whether, once fully driverless cars are widely available, he would still be able to drive his own car.  I quickly reassured him he would always be able to do so, but as we parted ways, I questioned what I had just told him.  If autonomous vehicle advocates are correct about the dramatic safety gains fully driverless cars stand to offer, might the government eventually outlaw human-driven cars on public roads?    

The more I research and write about this topic, the more I’m convinced that (eventually) the government both will and should.  After over a hundred years of human-driven motor vehicles on U.S. roads, the data is clear and abundant: taken as a whole, human beings are pretty terrible drivers.  According to the National Highway Transportation Safety Administration (NHTSA), 94% of all driving accidents are caused by human driver error.  We drive drunk, fall asleep at the wheel, make bad decisions, fail to react quickly enough, steal right-of-ways, miss the cars in our blind spots, and panic when it rains or snows.  One recent study, moreover, found that 7.8% of drivers on the road at any moment are texting or using a hand-held phone.  The impacts of these driving deficiencies are staggering.  Each year, motor vehicle accidents kill approximately 33,000 Americans, the equivalent of a major plane crash happening five days a week.  There are several million more non-fatal accidents.

Although the technology is improving and advancing at a fairly blistering pace, there is still a lot of work to be done on fully driverless vehicles before we can say with any level of confidence that they are definitively safer than human-driven cars.  That time, however, is coming, and when it does, experts predict that the safety benefits and reduction in injuries and fatalities will be profound.   Indeed, researchers believe that if even just 10% of the motor vehicles used in the U.S. were fully autonomous, 1,100 fewer people would die on roadways each year.  At 50%, 9,600 lives would be saved and 2 million fewer traffic accidents would occur annually.  At 90%, 21,700 lives would be saved and there would be over 4 million fewer crashes each year.  At that point, one of the most significant public policy questions will be whether we are willing to continue tolerating the risks created by human drivers.  I don’t know how anyone can look at the long history of motor vehicle accident statistics and say, in good faith, that we should.

One of the great questions posed in torts is when a given precaution should be adopted as the standard of care such that those who fail to adopt it can be found to have breached a duty.  In everyone’s favorite tugboat case, The T.J. Hooper, Judge Learned Hand says, essentially, that it doesn’t matter that everyone in an industry has been doing something one way for a very long time, adherence to custom shouldn’t be the final word on whether someone has been negligent.  As technology improves, individuals and companies are obligated to make changes when doing so would greatly reduce the chances of injury, particularly when the burden of making those changes is low.

Switching from human-driven to fully driverless cars is certainly more burdensome than installing weather radios on boats, the issue in The T.J. Hooper, but with significant numbers of car manufacturers actively developing autonomous versions of their vehicles, fifteen or twenty years from now, it may be the case that driverless cars are just as accessible and affordable, and significantly safer than human-driven ones.  When that’s the situation, might the choice to drive your own vehicle be a negligent one? Should the government take that choice away from consumers altogether?

As I noted above, as the technology improves (and human driving presumably doesn’t), I think the answers to those decisions will become fairly clear.  The question is whether public acceptance of these new technologies will keep pace with their development.  Will members of the public embrace their new motor vehicle robot overlords and the safety benefits they offer or, forty years from now, will there be a protester standing on the steps of the Capitol, holding up a steering wheel and proclaiming, “From my cold dead hands”?  And, with driving-related fatalities being what they’ve been, might members of the opposing movement respond, “Exactly”?

http://prawfsblawg.blogs.com/prawfsblawg/2016/11/theyre-coming-for-your-cars.html