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NHTSA’s Autonomous Car Guidelines: Top Ten Things We Learned This Week

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The recent first death of a driver in an autonomous Tesla brought self driving cars to the forefront of the national conversation. For months there has been widespread rumors in the media and throughout the auto industry that NHTSA is on the verge of issuing new guidelines for autonomous vehicles. Until now, at least for the public, there has been little to no information revealed about what these guidelines will say or how they will work.

This week there was an international industry symposium in San Francisco called the Autonomous Vehicle Symposium 2016 that was attended by virtually every auto manufacturer, major vendor, and player in the space. Having attended the Symposium this week there were ten things I learned about the highly anticipated federal “guidelines” that will regulate (and I might be using that term broadly) autonomous vehicles. So, after reviewing my notes from yesterday and today, here’s my top ten list:

1. Autonomous cars are here. Now. They are being beta tested on public highways in California, Michigan, Texas and other states. Many other states like Florida have also given the green light to additional beta tests — including for one company called “Peloton” to test vehicle to vehicle connections between commercial trucks — and to essentially allow semi-trucks to tailgate each other at highway speeds in a process that they call “platooning.” Different states are currently doing different things with respect to autonomous car and truck rules and legislation.

2. Industry — both traditional auto makers and non-traditional companies like Google, Faraday Future and Peloton Technology — are racing each other to get into the space. With billions of dollars to be made, autonomous vehicle technology is the new gold rush.

3. DOT Secretary Anthony Foxx made it abundantly clear yesterday, and NHTSA Administrator Mark Rosalind reinforced today — that the Obama administration is solidly behind this technology and has a sincere interest in rolling it out as soon as possible. Both Foxx and Rosekind explained they are behind this technology because they believe it will save thousands of lives. Rosekind said today that NHTSA’s research shows that this technology might eliminate as many as 19 out of every 20 accidents. Improved safety from autonomous vehicles will have dramatic effects on the economy — both in terms of efficiency, fuel economy, reduced medical bills, reduced auto insurance costs, and reduced personal injury claims and litigation.

4. The federal government will issue “guidelines” for this technology before the end of the summer. NHTSA has been meeting with industry for years on these guidelines but not with the public or consumer advocates. These discussions, and development of the guidelines, has all been behind closed doors. Even though the guidelines have been written and are being “tweaked” according to Rosekind, consumer advocates have not seen these guidelines and have been given essentially no opportunity for input.

5. According to Foxx, the guidelines will likely include model state legislation/regulatory language to avoid having different rules in different states.

6. Foxx said the guidelines will probably include a pre-sale approval process for production autonomous vehicles.

7. NHTSA has no plans to engage in the formal rule making process. NHTSA is supposed to engage in a well defined process for rule making before it regulates a new safety technology (think airbags for example). Rosekind stated today that NHTSA decided not to engage in formal rule making because the process would take several years. Rosekind said NHTSA needs to act immediately so this technology can be implemented quickly.

8. Autonomous vehicles will dramatically change the way people drive, commute and own cars — probably within the next 5 years according to most of the industry representatives I heard speak. There appears to be a rough consensus that we will see widespread production of level 4 and level 5 vehicles within that time frame.

9. Like any computer technology — especially in the early stages — this technology will have bugs. And glitches. And failures. And like with the Tesla crash last week, there will be some deaths and injuries caused by product failures. We are essentially in a beta testing phase, where this brand technology is being used on our public highways while industry works out the kinks.

10. NHTSA should include some provisions that consumer advocates want in the new guidelines. First, the guidelines should require redundancy. Specifically, we believe these systems should require drivers to have at least one hand on the wheel; at least for now, while the systems are being beta tested on public roads. Perhaps there should be additional redundancies as well; one example, as discussed yesterday by Colm Boran, head of Ford Motor Company’s head of Autonomous Vehicles unit, is Ford’s use of not just cameras and radar but also lidar (a sensor system using lasers) for redundancy. Second, even NHTSA foregoes formal rule making, NHTSA should give the public, the media and consumer advocates the chance to comment on and suggest changes to the proposed guidelines before the guidelines are formally enacted.

Bonus point: we learned yesterday that it seems that some major industry major players and NHTSA believe that the new guidelines should not pre-empt state common laws. In fact, one NHTSA official said off the record that state tort laws should continue to be the basis to for adjudication of liability when there is a crash involving an autonomous car. This is great news, and if true, NHTSA should include some specific language to that effect in their guidelines. This is especially needed if, as Foxx said yesterday, there will be pre-sale approval by NHTSA for these vehicles. Without specific language, some defense lawyers will probably argue that the new guidelines pre-empt state laws and that the manufacturers are immune from state common law claims.

We will continue to watch this issue as it progresses and provide updates as we learn more.

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Rich Newsome is a product safety lawyer in Orlando, Florida. Rich represents people with catastrophic injuries caused by defective products.

Self-Driving Vehicles and Federal Preemption

Yesterday, Tesla confirmed that the government is actively investigating the first reported fatality involving the company’s “auto-pilot” technology.  The fatal crash occurred on May 6 in Williston, Florida, claiming the life of former Navy SEAL Joshua Brown.  According to Tesla’s public statement about the crash, the car’s autopilot feature failed to notice the white side of a tractor trailer against a brightly lit sky.  As a result, the software failed to apply the brakes, and the car’s windshield struck the bottom of the trailer.

As we have previously written, “autonomous” or “self-driving” automotive technology has the capability to save lives, if implemented correctly.  A self-driving vehicle should theoretically perform better than a human driver if it operates according to a computer code that properly accounts for the surrounding environment and changes in traffic conditions.  However, when technology reaches the market before it is ready, software bugs and design flaws may go unnoticed until it is too late.  We’ve all had a computer crash unexpectedly.  Now imagine if that computer was supposed to be making the call as to when to apply the brakes during rush hour.

Well-developed negligence and strict products liability law already provide the best solution for those instances where self-driving technology fails and results in injury or death.  Under a negligence or strict liability theory, the manufacturer would be held accountable if a design defect caused or contributed to the crash.  The determination as to whether the software had a defect would, in turn, be made in the same manner that these kinds of determinations have always been made—by a civil jury.

Time and time again, the civil jury system has proven the best way to get to the truth in product defect cases.  Each and every automotive crash is unique, and the determination as to whether a product had a defect that played into a crash must necessarily be made only after carefully reviewing the circumstances of that particular crash.  The jury system allows for this type of case-by-case analysis to be conducted in open court, with each party having a fair opportunity to present their claims and defenses.

Unfortunately, auto manufacturers are now actively lobbying federal lawmakers to strip citizens of their rights to a jury trial should they find themselves in the same predicament as the Brown family.  Their weapon of choice in this regard is federal preemption.  Specifically, they are seeking what could be an often-times insurmountable defense whereby regulations implemented by Washington bureaucrats would forever trump the right of any individual citizen involved in a self-driving vehicle crash from seeking relief in the courts.

Earlier this year, the US Department of Transportation announced that it was working on guidance with respect to self-driving vehicle technology.  Since then, both the DOT and the Senate have held hearings in Washington to address the issue.  The DOT guidance is supposed to be released sometime this month.

Stay tuned.  We will continue to monitor and provide updates on the key legal and regulatory battles with respect to self-driving vehicles as they unfold.

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