Nearly 1.3 million people die in car accidents each year, amounting to an average of roughly 3,287 deaths a day. Hopefully, with the advent of self-driving cars, that number will begin to drop precipitously. Unlike human beings, the technology behind these autonomous vehicles yields the safest results in every thought out scenario, by using complex algorithms. People can drive drunk, get distracted by text messages, or lack the reflexes to brake in time; self-driving cars are not subject to any of these flaws. Self-driving cars will dramatically reduce the amount of car accident fatalities resulting from human error. However, this new wave of automotive technology should bring out fascinating legal questions in realm of tort and contract liability. These products will reshape, or in some cases stymie, standard claims of negligence, product liability, and breaches of the implied warranty of merchantability.
The very essence of a negligence claim involves a “reasonable person” analysis. For instance, if a driver decides to steer with their feet for fun, and injures someone as a result, they have almost certainly acted in a way that a reasonable person would not, and are thus liable for at least compensatory damages to the extent of the victim’s injuries. Self-driving cars, like all machines lacking direct human input, of course cannot be found to be negligent, as they can’t be compared to the reasonable person. Unfortunately, there have been instances where these cars malfunction and injure people, or even actively decide to hit a group of people in an emergency scenario, in order to avoid killing more people, a modern formulation of the “trolley problem.” Currently, most laws require drivers to have their hands within inches of the wheel at all times. Therefore, negligence claims would still be available to these victims against the driver. But down the road (no pun intended) these cars will be completely autonomous and arguing that the driver was negligent will be fruitless. Perhaps, we will arrive at point where the technology will be so seamless, that any emergency trolley problem scenario will be due to contributory negligence on the part of the victims, barring any negligence claims in the first place.
Victims of malfunctioning self-driving cars won’t be out of luck just because negligence claims will be barred. We may see future case law deciding that self-driving cars constitute unreasonably dangerous activities, and thus the manufacturer or perhaps owner will be held to be strictly liable. From a public policy standpoint, courts may resist imposing strict liability, as a strict liability regime would disincentivize further innovation or manufacture of the product altogether. Perhaps the courts will arrive at a “no-fault” system after seeing how the benefits of these cars greatly outweigh the costs of the predicted minimal amount of accidents of year. Perhaps there will be special courts for these issues where victims could seek redress.
Another route future plaintiffs can take is that of product liability. If the cars malfunction, they can argue for design defect, or if a version lags behind the market, perhaps arguing that there was a manufacturing defect would be more suitable. However, proving either design or manufacturing defect was present will be difficult given the complexity and technological detail that goes into the manufacture of these cars and their artificially intelligent software.
Another interesting issue will arise not when the cars cause fatalities, but when they don’t operate as they should. This will lead to claims under the Uniform Commercial Code, section 2-314, for breach of the implied warranty of merchantability. It is generally easy to untangle which products are not fit for their ordinary purpose and which are. For example, if you buy a table and it collapses when you put your dinner plate down, every court in the United States will agree that the seller has breached the implied warranty of merchantability (assuming, of course, that it has not been disclaimed). As smart phones became more ubiquitous, it was interesting to see the courts struggle to decide a standard for fitness for this new technology. In In re Carrier IQ, Inc. N.D.C.A.78 F. Supp. 3d 1051 (2015), the court found that because certain software on the plaintiffs’ smart phones collected personal information, this was considered a breach of their warranty of merchantability. This may be surprising as one would think the ordinary purpose of a phone is simply to communicate, but the court took it a step further and argued the purpose is to communicate without worry of any invasion of privacy. How will courts approach self-driving cars? What is their ordinary propose? Whatever the answer is, it will surely continue to change as these cars become more efficient and far more autonomous.
Avi Kaye is a J.D. candidate, 2019, at NYU School of Law.

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