by Kimberly C. Metzger
Ice Miller LLP is an IMA member…
Who is to blame—and who gets sued—when an autonomous vehicle (AV) is involved in an accident?
In a lawsuit believed to be the first of its kind, a California motorcyclist is suing General Motors LLC in federal court, alleging he suffered personal injuries in a collision with an AV (i.e., “self-driving car”). In the complaint filed January 22 in Nilsson v. General Motors LLC, Case No. 4:18-cv-00471-JSW (N.D. Cal.), plaintiff Oscar Nilsson claims a 2016 Chevrolet Bolt AV vehicle operating in self-driving mode “suddenly veered” into his driving lane, striking his motorcycle and knocking him to the ground. Nilsson claims he suffered neck and shoulder injuries that will require lengthy treatment and a disability leave from work.
Nilsson’s single-count complaint alleges negligence against the manufacturer. He claims GM owed him a duty to “hav[e] its Self-Driving Vehicle operate in a manner in which it obeys the traffic laws and regulations,” and breached that duty “in that its Self-Driving Vehicle drove in such a negligent manner that it veered into an adjacent lane of traffic without regard for a passing motorist….”
Although the case may be groundbreaking in that it involves an AV, the facts may not be as scintillating as they first appear. GM has been testing AVs in San Francisco under the state Department of Motor Vehicles’ Autonomous Vehicle Tester Program, enacted under the California Vehicle Code Sections 38750-56 (“Autonomous Vehicles”) and implementing regulations (13 CCR § 227). Manufacturers of autonomous technology cannot test AVs in “autonomous mode” on California public roads until they have applied for and obtained an Autonomous Vehicle Testing Permit from the DMV. (13 CCR § 227.04(d)). As of January 11, 2018, 50 manufacturers (including GM Cruise LLC) have held such permits. Among the requirements for a permit is that all AVs be operated by a test driver whom the manufacturer has certified to be competent and authorized to operate the vehicle. (13 CCR § 227.04(b)). The driver must be “seated in the driver’s seat, monitoring the safe operation of the [AV], and capable of taking over immediate manual control … in the event of an autonomous technology failure or other emergency.” (Cal. Veh. Code § 38750(b)(2)). So, this vehicle was not operating unoccupied at the time of the accident. Further, before testing an AV on public roads, a manufacturer must also test it “under controlled conditions that simulate, as closely as practicable, the real world conditions” it will encounter on public roads. (13 CCR § 227.24).
As expected, there are two sides to the story of Mr. Nilsson’s accident. The California AV testing regulations require that manufacturers report to the DMV all accidents “originating from the operation of” an AV that result in personal injury or property damage. (13 CCR § 227.44). As of January 18, 2018, the DMV had received 54 Autonomous Vehicle Accident Reports, 24 involving the GM Cruise. While almost all of these accidents occurred while the AV was in autonomous mode, they were—with the exception of Nilsson’s accident—low-speed “fender-bender” type incidents involving minor or no injuries and only nominal vehicle damage. In many cases, the police declined to respond. The narrative account of the accident (albeit, provided by the manufacturer) often notes inattentiveness or negligent behavior on the part of the other driver, cyclist or pedestrian involved in the accident. The report for Nilsson’s accident states:
A Cruise autonomous vehicle (“Cruise AV”), operating in autonomous mode in heavy traffic, was involved in a collision … The Cruise AV was traveling in the center of three one-way lanes. Identifying a space between two vehicles (a minivan in front and a sedan behind) in the left lane, the Cruise AV began to merge into that lane. At the same time, the minivan decelerated. Sensing that its gap was closing, the Cruise AV stopped making its lane change and returned fully to the center lane. As the Cruise AV was re-centering itself in the lane, a motorcycle that had just lane-split between two vehicles in the center and right lanes moved into the center lane, glanced the side of the Cruise AV, wobbled, and fell over. At the time of the collision the Cruise AV was graveling with the flow of traffic at 12mph, while the motorcycle was traveling at approximately 17mph ….
As reported in Traffic Collision Report #170989746, the motorcyclist was determined to be at fault for attempting to overtake and pass another vehicle on the right under conditions that did not permit that movement in safety, in violation of CVC 21755(a).
In many ways, this reads like a typical accident report involving standard vehicles. Under those circumstances, one operator would sue the other and their insurance companies would work it out. Here, however, brave new tech is involved, with novel avenues for liability. Since the test driver was (per regulation) an employee or agent of the manufacturer, there is little to be gained from suing him individually. The manufacturer is an attractive target because another condition of receiving an AV testing permit is the demonstrated ability to satisfy a judgment up to $5M (13 CCR § 227.04(c)). The testing regulations open the manufacturer to questions such as the quality of its AV test driver training program, the competence of the individual test driver (which the manufacturer must certify) and how closely pre-permitting test conditions mirrored real-world conditions—not to mention the function of the vehicle itself.
This lawsuit is in its initial stages, but no doubt parties on both sides of the “v” will be watching it closely.
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