Growing receptivity to the use of autonomous vehicles, as exemplified by the Los Angeles City Council’s passage of a resolution this year in support of regulatory changes favorable to the new technology, has made some lawyers and law firms bullish on opportunities in the AV field.
“States, cities, and counties have been huge leaders in creating space for AV innovators to responsibly develop, test, and deploy AV technologies,” Melody Drummond Hansen, a Silicon Valley-based partner in O’Melveny & Myers’ IP and technology practice, said recently in a statement by the firm citing the LA City Council’s move.
Hansen fully expects AV technology to continue to spread to a point where the approximately 35,000 annual deaths resulting from human error in driving are sharply curbed or eliminated altogether. Further encouragement comes from Waymo’s aggressive promotion of its fleet of self-driving cars, as featured in an Atlantic Monthly article, and in Tesla’s introduction of ”Navigate on Autopilot.”
But many law firms appear oblivious to the signs that the self-driving vehicle could become a feature of daily life in the not-too-distant future. And with that societal shift, controversy and litigation centered around autonomous vehicles will increase. Hansen believes that at this juncture, the question is not whether AV technology will catch on, but whether law firms grasp and are ready for the opportunities and challenges that will arise in myriad practice areas.
“One of the challenges for lawyers is to catch up with technology. We see this in the regulatory space, but I think it’s also true for outside counsel who are advising companies,” Hansen said. “It’s a cliché that lawyers are risk-averse, and for some of the older and bigger ones, there may be a temptation to continue in a traditional path.”
Hidebound law firms that fail to anticipate the widespread demand for legal services related to AVs could lose out. To take just one piece of the huge puzzle, designers and makers of AVs will need guidance when it comes to communicating with consumers to ensure that the latter are sufficiently educated about how AVs work and what they can and cannot do, as well as issues related to privacy and data security.
“We’re going to have to work through the right ways to address who can collect and use data, what data can be used for, and what disclosures need to be made about the collection and use,” Hansen said, noting that a heavily automated car is likely to gather extensive data about its own operations, its decision-making processes while driving, and about accidents and near-misses.
That information is of value to designers, makers and regulators. But not everyone will be comfortable with it being shared, particularly when there is disagreement over who bears responsibility for a mishap.
As designers and makers of AVs anticipate scenarios where passengers have medical emergencies, or violence breaks out between one passenger and another, they may decide that inward-facing cameras are a necessity in AVs. Not all AV buyers or potential buyers will be comfortable, however, with the prospect of being monitored as they ride or with the possibility that the camera footage could be used for legal purposes.
“There will be issues around how private and how secure an AV product is,” Hansen said. “We can expect a lot more scrutiny from regulators, attorneys general and state actors, and also the product liability bar, of the ways people are communicating.”
Yet another area where products liability lawyers and litigators will come into play is the potential hacking of highly computerized AVs. In Hansen’s view, it is wise to anticipate the worst and assume that an AV will be hacked. Just as lawyers currently advise financial institutions and corporations on nightmare scenarios, they will need to provide counsel to AV designers and makers, she said. And they will need to approach such scenarios in two ways: First, how do you construct a system highly resistant to hacking? And secondly, if the worst does happen, what response plan needs to be in place? In the context of AVs, Hansen noted, such issues are particularly sensitive because the personal safety of passengers requires immediate detection and response.
Burden on the Manufacturers
Makers of semi-autonomous vehicles hope to avoid liability by including the clearest and most accurate disclosures and warnings in users’ manuals. That is not likely to happen, said Erica Rutner, a commercial litigation partner at Lash & Goldberg.
“Once we get into the world of fully autonomous vehicles, that option is not going to exist and manufacturers better hope they don’t have defects in their technology,” Rutner said.
Celine Crowson, a partner at Hogan Lovells, agrees.
“With semi-autonomous, or driver-assisted, vehicles, there is still a situation where the liability arguably falls on the driver first, and then one looks at whether the manufacturer or service organization is at fault,” Crowson said. “In those cases, the driver still has some interaction with the vehicle, but things will change as we move to fully autonomous vehicles.”
If accidents involving AVs occur in significant numbers, and cases end up in summary judgment or go to trial, arguments will rage over alleged product deficiencies, presenting manufacturers with nightmare scenarios.
“It’s going to bring a lot more risk and exposure for the manufacturer because they will start seeing class actions. If there’s the allegation of a defective product in a vehicle, the class action will include not just the people involved in accidents, but every single individual who has owned one of these vehicles,” Rutner said.
Interestingly, it is the real estate practices of a few law firms that have recognized one of the most potentially far-reaching legal issues around AVs. Zoning regulations, some of which have been on the books for decades, will become obsolete at best, and at worst, a severe impediment to growth as AVs become more and more widely used.
“If you’re based in LA, one way you can trace the evolution of the region is through transportation, which shapes the development of urban areas as much as anything else,” said Justin Thompson, a partner at Nixon Peabody in LA.
Regulations often fail to keep pace with revolutionary changes in transportation, he said. For example, as AVs become more prevalent, cars will not need to stay in a given spot outside an office all day while their owners are working.
“If you couple ride sharing with technology, I think you do get to a situation where it reduces congestion and helps with parking. Parking a car itself can be done autonomously. You get out of a car and then it goes off somewhere and parks itself,” Thompson explained.
Hence, the parking counts codified in municipal and zoning codes are an anachronism, he said. Codes mandating that a new building made for a hundred tenants must have a hundred parking spaces, or imposing a similar ratio on office complexes under construction, will be unnecessary as more and more people use AVs.
Moreover, AVs will have a huge impact on airports and parking garages, said Thompson, who questions whether parking at an airport will even be necessary when a car can drop its owner off and then turn around and go home on its own.
“Ten years from now, there’s no sense in having the same number of parking spaces that you would have now or would have had 20 years ago,” Thompson commented.