The evolution of the automotive industry in the United States continues, changing from traditional to “highly automated” vehicles (HAVs). Pennsylvania has actively participated thus far, and it appears the commonwealth aspires to gain recognition as a leader in the movement. As the transformation from traditional vehicles to HAVs continues—hopefully to the point where all crashes are eliminated—civil trial lawyers in Pennsylvania must continue to play a role in the process.
Anyone reading this article has either operated or has been a passenger in a traditional vehicle—one that requires the knowledge, skill and effort of a human being to navigate our current system of roadways. Motor vehicles have been around since the early 1900s and have continually made technological and safety advancements throughout their history. The most recent advances in research and development indicate that truly self-driving cars are in the immediate future. Someday soon, we may no longer be the drivers of our own cars.
What Constitutes a Highly Automated Vehicle?
According to most definitions, an HAV is a vehicle that performs dynamic driving tasks through the use of a combination of hardware, software, cameras, lasers, sensors and actuators. Partially autonomous vehicles, meaning those that require input and intervention from a human driver, exist on our roadways today. Fully autonomous or driverless vehicles, however, have not hit the streets just yet.
As driverless car research and development continues, SAE International, a worldwide association of engineers and experts in various commercial vehicle industries, has organized automated vehicles into six categories from zero to five: Level 0 vehicles must be driven by a human and do not offer any automation. Level 1 through Level 3 vehicles offer some autonomous capabilities, essentially offering increased collision-avoidance technology (CAT) features and more automation at each level. For example, a Level 3 vehicle on the market today may offer CAT features such as blind-spot detection, lane departure warning and control, automatic braking with collision warning, and some form of auto-pilot, however, each still requires input and intervention from a human driver. Simply stated, Level 4 vehicles can operate with human intervention, but really do not need us to perform dynamic driving tasks. Level 5 vehicles are fully autonomous and driverless. Some manufactures will not even include steering wheels or other controls in their models.
How Will Fully Automated Vehicles Work?
Once implemented and integrated into our transportation system, if the fully automated or self-driving vehicle is “connected,” the car will actually communicate with other vehicles on the road and with the infrastructure in place to support full automation. Once connected, the vehicle’s highly automated driving system will create and maintain an internal map of its surroundings—which will include traffic signals, other vehicles, pedestrians and other markers that the vehicle’s system will detect to keep it operating safely on the roadway. The car’s system will plot its path and basically send instructions to the actuators to accelerate, turn and brake the car, so a human becomes nothing more than a mere passenger. If the vehicle is not fully connected, the vehicle will presumably still rely on some level of communication, such as with other vehicles on the road perhaps, to allow its safe operation.
HAV Transformation Process
In Pennsylvania, researchers and manufacturers of various HAV technologies have already begun testing on our roads. For example, as of September 2016 and to this date, Uber has begun and continues testing its self-driving vehicles in Pittsburgh. Carnegie Melon University researchers have played a prominent role as well, developing the General Motors-Carnegie Mellon Connected and Autonomous Driving Collaborative Research Laboratory.
Realizing the one-time only opportunity to be a national leader in the HAV movement, the Pennsylvania Departments of Transportation (PennDOT) and Community and Economic Development (DCED) have stepped up as well. The two departments recently held the 2017 Pennsylvania Automated Vehicle Summit in State College in September. Held over a two-day period, the summit was touted as the first in the United States and featured members of government agencies and private industries. Leaders in all aspects of the HAV movement took part in discussions, lectures and even several actual demonstrations of automated private passenger and commercial vehicles on a nearby test track.
So, from all indications, Pennsylvania has embraced HAV technology and plans to continue to transition its roadways from traditional to highly automated vehicles in the future. Civil trial lawyers, however, are proceeding cautiously, as the history of technological safety advances in the auto industry has been anything but an immediate and smooth road to ending vehicular crashes, injuries and deaths.
Will HAVs Eliminate Automobile Crashes?
As alluded to earlier, the ultimate goals of HAVs and driverless cars include the reduction—or outright elimination—of vehicular crashes, thus reducing or eliminating serious injuries and deaths on our roadways. One might ultimately conclude that if the infrastructure and vehicle technologies function properly some day, we will have a transportation system that operates without the primary cause of motor vehicle crashes: human error. In a perfect world, HAV technology will continue to develop, and the federal, state and local governments responsible for implementing appropriate infrastructure will do so at the same pace. Until then, however, the ever-evolving state of autonomous vehicle technology will present unique and complex issues that researchers, planners, government officials, lawmakers and civil trial lawyers will have to address sooner rather than later.
At the 2017 Pennsylvania Automated Vehicle Summit I had the privilege of addressing a large group in a break-out session with other lawyers from PennDOT and the PA Department of Insurance to discuss liability and insurance issues in HAV crashes. Presently, all vehicles on the road still require a human driver. Thus, as long as human error produces car crashes and injuries, determining the proper tortfeasor for liability purposes is rather simple, as is determining the injured plaintiff’s cause of action in order to hold that tortfeasor responsible for the damages he or she causes. Until our auto industry and transportation system becomes dominated by fully automated, connected vehicles, the tortfeasor in any legal action for damages remains a person and the typical cause of action is negligence. Also until that point, unfortunately, as we have seen throughout the history of automotive technological advances, we will continue to experience crashes and those crashes will hurt and kill people on our roadways. Determining the at-fault “driver” in crashes involving HAVs may be a difficult task as recommendations, laws and regulations begin to emerge. As a result, our state civil justice system must continue to serve as the ultimate measure of the safety and utility of this new HAV technology as it develops. Although we want to encourage development of automobile safety technology in the commonwealth, we must continue to protect the rights of innocent victims injured by that technology, particularly as it is tested and perfected on our highways and roads.
Senate Bill 427, which provides for HAV testing in Pennsylvania, also offers some guidance on the liability issue. Under Subchapter F, “Liability,” Section 3651 (1), the bill proposes that the “test operator” of a Level 3 vehicle shall be deemed the driver for purposes of violations of the law, and for practical purposes, for determining the driver of the at-fault vehicle in a collision. The test operator, as defined therein, is a natural person. With that said, Section 3651 (2) states that the “automated vehicle tester” in a Level 4 or 5 vehicle shall be deemed the driver of an at-fault vehicle. Like a test operator, an automated vehicle tester includes a person, but also adds a manufacturer, technology provider or other entities that test HAVs. Thus, the theory of liability when HAVs crash in Pennsylvania should change from negligence to products liability. If it becomes law, Senate Bill 427 may actually help protect innocent victims injured by HAVs by providing several clearly defined, potential defendants. Until the age of fully automated connected vehicles arrives, though, as my law partner and PennDOT Autonomous Vehicles Testing Policy Task Force member, Larry Coben has written, “when machine and man combine to cause harm, each must be held accountable.”
Christopher Marzzacco is a partner at Anapol Weiss. Focusing his practice on plaintiffs personal injury matters, Marzzacco primarily handles significant injury and death cases arising from automobile crashes. Marzzacco has lectured for the Pennsylvania Bar Institute, PA Association for Justice, End Distracted Driving and other organizations, and he teaches yearly at Widener University Commonwealth Law School’s Intensive Trial Advocacy Program.