The Future of Tort Liability for Autonomous Vehicles

By: Lucy Aquino

For years, academics have debated the risks and benefits of developing and distributing fully autonomous vehicles — and for good reason. While the most noticeable impact will be on the roads, the growing availability of autonomous vehicle technology will have a much larger impact on society and the economy as a whole. As defense lawyers, our minds jump to the impact on automobile tort liability: Can or should our current liability rules be applied to motor vehicle accidents involving vehicles driven, totally or partially, by autonomous systems?

To address this issue, we must first establish the extent to which a vehicle can be considered “autonomous.” The National Highway Traffic Safety Administration (NHTSA) classifies automated vehicles in six possible levels of automation. The initial level (L0) speaks to driving systems where the human driver is in total control of the vehicle, while the final level (L5) refers to truly self-driving vehicles in which the autonomous system is expected to not only replace the human driver but also to perform better than a human driver in every scenario. The intermediate levels (L1-L3) — the only levels currently available to consumers — refer to vehicles that provide some degree of autonomous assistance, but still require the supervision of a human driver. Features such as lane departure assistance, automatic breaking and adaptive cruise control are designed to reduce instances of human error by delegating certain driving tasks to an automated system. However, even under the most evolved level of automation currently available (L3), the human driver is still ultimately responsible for supervising the vehicle and taking over in the event of emergency.

State legislatures across the country have worked to bring state laws up to speed with this new technology and to provide a legal framework for autonomous vehicles operating on public roads. Georgia is no exception. In 2017, the Georgia General Assembly passed Senate Bill 219, which amended certain aspects of the state’s traffic and criminal codes to pave the way for regulation of self-driving vehicles in the future.

First, the bill modified the term “operator” to encompass anyone “who causes a fully autonomous vehicle to move or travel with the automated driving system engaged.” This definition is intended to create single-point liability for any accidents, whether it lies with the automaker that directly sells and distributes an automated vehicle or the individual owners who install and/or operate autonomous driving systems.

Second, the bill exempted “operators” of autonomous vehicles from driver’s license requirements. Thus, under the revised laws, an individual does not need a driver’s license to ride in a fully autonomous vehicle. However, the revision does not exempt autonomous vehicles from complying with the rules of the road, including any post-accident statutory requirement the vehicle or operator remain on the scene of an accident and report it to law enforcement.

Third, and possibly reflecting societal concerns about the implementation of autonomous vehicle technology, the bill imposed specific liability insurance requirements for fully autonomous vehicles. As of Jan. 1, 2021, owners of fully autonomous vehicles must maintain insurance coverage with minimum limits of $300,000 — the same minimum limits required for limousines and taxis.

Of note, the definition of “fully autonomous vehicle” in SB 219 renders it wholly inapplicable to any technology currently available to the general public. In order to qualify as a “fully autonomous vehicle” under the bill, a vehicle must be able to perform all aspects of the dynamic driving task and must not, at any time, require that a human driver assume any portion of the task. In the event of a malfunction, the vehicle must be able to come to a stop in a reasonably safe manner without requiring any type of human intervention. While autonomous vehicles that can be operated without a human driver are currently being tested on public roads, none are currently available for purchase. Even in the most autonomous vehicles currently available, the human driver is always responsible for the supervision of the vehicle and will remain, at least for the time being, liable for any accidents.

The Georgia General Assembly’s decision to create a legal framework for truly self-driving vehicles shows that this technology is expected to be more prevalent in the near future. As these vehicles become accessible to the general public, this legal framework will be critical for determining where tort liability falls when human drivers no longer control the vehicle.

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Lucy Aquino

As of Jan. 1, 2021, owners of fully autonomous vehicles must maintain insurance coverage with minimum limits of $300,000.
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