By on March 27, 2017

autonomous testing tesla

Every time we write an article about autonomous vehicles, our comments section is quickly populated with discourse over how litigation would be handled in the event of a crash. Who do you sue?

You can’t fault the driver, because a truly self-driving car takes them out of the equation. Suing the manufacturer doesn’t work because, assuming the system functions properly, they’re still saving lives and shouldering all of the risk would discourage companies from bothering to pursue the technology.

However, autonomous accidents will happen and someone is inevitably going to appear in a courtroom. The justice system has to decide how that will be handled, but Automotive News’ Katie Burke has an interesting solution. It relates to how the United States deals with legal actions involving vaccinations.

During the 1970s and 1980s, a small number of children suffered severe brain injuries after getting the DPT vaccine (which protects against diphtheria, lockjaw, and whooping cough). Despite the vaccinations saving countless lives, it was believed to cause brain damage in a handful of rare cases. The families of affected children began suing pharmaceutical companies for millions of dollars, and companies began retreating from the marketplace.

Worried that the best defense against potentially fatal diseases — some of which also cause brain damage — was going to be sued into oblivion, Congress passed the National Childhood Vaccine Injury Act in 1986. The legislation created a court within the U.S. Court of Federal Claims, called the Office of Special Masters, with the sole function of hearing vaccine injury claims. It has awarded claimants billions since its inception so that vaccine makers can continue to persist.

With the development of the Office of Special Masters, pharmaceutical companies were no longer liable for the vaccines they produced. After 1986, claims could be filed against the Department of Health and Human Services, and a panel of  judges determined the case’s legitimacy. Other countries have followed suit with similarly modeled court systems.

Burke’s proposed solution for autonomous vehicle litigation would be to model something akin to the National Vaccine Injury Compensation Program. The state would provide oversight for the standards and practices of autonomous implementation and, so long as manufacturers meet those guidelines and save most of the 35,000 people every year they intend to, the government would assume the financial risk.

However, there are a few gaps in this solution that would need to be filled. In vaccine cases, more families have been compensated since the special courts took over, though the damages paid have been smaller overall. Still, it wasn’t just the families that benefited after 1986 — the pharmaceutical industry turned a corner.

“Once the courts gave them protection, pharmaceutical companies started making a lot of money,” explains David Ratcliff, an American Association for Justice researcher.

The vaccine court provides an important function to ensure dangerous illnesses remain checked, it also takes some of the burden off drug makers. Giving special protection to vehicular safety technology would need to be carefully regulated. Ratcliff believes that allowing automotive companies to a free pass would be a mistake.

“Take the Takata airbags, for example,” he said. “They’re meant to protect you but could turn you into Swiss cheese. If a safety innovation turns deadly, you want the manufacturer to be held accountable.”

There is also the matter of autonomous cars sharing the road with human drivers. Insurance companies might deem it to difficult to decide who is at fault and not bother insuring self-driving cars, especially if the government is already handling those claims. In which case, the state becomes suddenly responsible for the analysis of complicated accident investigations involving living, breathing, operators.

It’s not a perfect solution, nor does it settle all legal the matters surrounding autonomous vehicles, but it does provide a judicial precedent for how we might protect the existence of a potentially life-saving technology.

[Image: Tesla Motors]

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15 Comments on “Autonomous Vehicle Legislation Could be Modeled After Vaccines...”

  • avatar

    At first I thought this would be about programming a car to make a decision. When picking flu vaccines they look at what they think will be the most likely strains to hit a populace then develop a treatment hoping they guessed right.

    This story does raise an interesting question about USA government. They seem to be reluctant to offer aid to those whom need it but have no problems aiding big corporations and the 0.1%.

  • avatar

    I’m having another f**k this country moment.

  • avatar

    we need to get protection from bad drugs back for citizens, not take more protections away.

    • 0 avatar

      The incidence of serious side effects from vaccinations is rather small in relation to the good that they do. Things like polio and small pox have been virtually irradiated. There is the camp that feels all vaccines are bad. Those tend to be in a demographic not old enough to remember polio.
      Flu shots on the other hand, I’m willing to debate the benefits. Virus’s mutate rather readily and guessing which three strains are most likely to cause a flu outbreak is dubious. IIRC, last year they only got 1 of 3 correct. The prior year zero for three correct.

  • avatar

    I have the luxury of not caring here. My lifespan will end this century.

  • avatar

    I really don’t see any reason or need to change the existing insurance model, where Individuals insure their own vehicles. Regardless of who is actually doing the driving, the ‘operator’ of the vehicle will most likely still have a significant influence in the risk of accidents. Vehicle maintenance, weather conditions during operation, traffic congestion, route selection. Pretty much the same contributors to accidents today will carry over to autonomous vehicles.

  • avatar

    Maybe someone should look at New Zealand’s “no fault” system where anyone injured in a car accident is covered by insurance. Great savings in legal fees.

    • 0 avatar

      A number of individual States have implemented “no fault” insurance over the years, with wildly differing results. Back in the 1990s there was a ballot initiative in California to go to no fault, and the information that came out about other States that had done the same showed that a lot depended on just how it was implemented.

      For example, at the time, Michigan had no fault and had the lowest insurance premiums in the country. At the same time, New Jersey also had no fault and had the highest premiums in the country. The difference was Michigan had caps on all claims, while New Jersey still allowed individuals to sue if they felt the maximum payout under no fault didn’t adequately cover their medical expenses and other damages. Capping claims keeps the lawyers out of it, but leaves some people with legitimate massive medical bills from getting enough to cover them.

      I suspect no fault works best when coupled with single-payer health care.

      • 0 avatar

        With no-fault, you can take out insurance covering injuries to yourself. So you, yourself, get to decide how much risk you want to take on, and how much you are willing to pay to avoid it.

        “At fault” is just another in an ever growing list of lawyers’ ways to get around the innocent-until-proven-guilty protections people for a brief moment enjoyed against being the victims of state assisted theft by the connected and powerful. If being “at fault” required you to first be convicted by jury of 12 peers according to criminal standards, it may well have some social utility.

        But as it is practiced now, it’s about nothing more than allowing lawyers, who at best are dumb enough to be fooled by randomness, to run around robbing others with the aid of the ever more totalitarian state.

    • 0 avatar

      No fault is great if you believe the responsible party should escape punishment. I think, in a sense, we have things completely backwards. Instead of “innocent until proven guilty” it should be “guilty until proven innocent”. It is a clear reflection of how one views humanity – basically good or basically bad, infallible or fallible. It seems that no one has to be taught how to lie or cheat. The reverse appears to be true. That follows through to causation of accidents. In many cases some individual made a poor decision thus causing an accident. Why should that individual not bear the burden of proper restitution to the injured party?

  • avatar

    Brakes are life-saving features on a car. When the brakes fail and the vehicle hurts or kills people, the manufacturer of the vehicle gets sued.

    Why should autonomous tech be any different? In the case of an autonomous driving failure, the manufacturer should still get sued.

    When the vehicle driver fails to use the brakes and hurts or kills someone, the driver gets sued. If it’s a teen driver who drives badly and causes the accident, the parents get sued. If your guard dog bites someone, the owner gets sued.

    Why should autonomous tech be any different? If you buy an autonomous car, that car is “your robot”. It kills someone, you get sued. If the robot’s owner feels the robot was used properly and the manufacturer is at fault, then they counter-sue. That’s the obvious way for things to work.

  • avatar

    If we treat autonomous cars like vaccines, does that mean there will be a bunch of hack scientists and Jenny McCarthy claiming that autonomous vehicles cause autism?

    • 0 avatar

      @Garrett – *hack* scientists are always at work when truth/facts do not jive with one’s beliefs aka world view. Ironically, presenting more facts just makes them entrench more deeply.
      One must first understand the reasons why one believes what they believe. That entails understanding their values and beliefs. One must then approach from their perspective and work through it emotionally.

      That is a difficult process that involves reassessing our own beliefs and then accepting someone else’s beliefs. Until we do that, the chasm that exists in the USA today will only grow deeper and wider.

  • avatar

    Like swine flu vaccine? Google it if you are too young. The risk are high, very high, and with limited liability, corners will be cut without having to think about the end result.

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