June 5, 2018
Let’s face it: Everything, including your car, will be fully automated within the next decade or two. Full automation will likely increase productivity and reduce the stress of daily life. Imagine traveling from Fort Lauderdale to Miami for an important meeting on a Tuesday morning. It will likely take you an hour and a half to reach downtown. If your car was fully automated, you could use that hour and a half to review your notes instead of worrying about which lane is moving faster. But what happens if your automated or self-driving car causes an accident and someone is injured? Who is responsible and under what legal theory?
Before trying to answer this question, one must first understand automation in the context of self-driving cars. According to SAE International, a global association of experts in the aerospace and automotive industries, there are six levels of automation with 0 meaning “no automation” and 5 meaning “full automation.” The average Tesla is deemed to be “partially automated,” or a level 2 in the automation scale. At level 2, the car is able to steer, accelerate and decelerate using information about the surrounding environment with the expectation that the human driver will perform all remaining aspects of driving. At level 5, a car will literally drive itself with no required human input.
Fully automated cars on I-95 are still a few years away, but state legislatures around the country are not waiting to implement new legislation. Since 2012, 41 states have considered legislation relating to autonomous vehicles and Florida has been at the forefront of the issue as one of the first states to pass such laws.
In 2012, Florida enacted Section 316.85, Florida Statutes (2012), which allows a person with a valid driver’s license to “operate an autonomous vehicle in autonomous mode” if the vehicle is equipped with that technology. Last year, State Senator Jeff Brandes introduced a bill which would have expanded the language of Section 316.85. If enacted, the proposed Senate Bill 1066 would have eliminated the need for a licensed (human) driver to be in the car during operation. The Bill would have considered the autonomous technology to be the de facto “operator” of the car “regardless of whether a human being is physically present in the vehicle” while in autonomous mode.
The Bill ultimately did not pass, but similar bills are being contemplated throughout the country, and the Florida legislature is bound to consider similar legislation again. If Bill 1066 was the law in Florida in our “Tuesday morning” scenario above, it appears that the manufacturer of the car would be responsible under a products liability theory. After all, under Bill 1066, it would have been considered the “operator” of the car at the time of the accident. But could a case also be made for your negligence as occupant if you could have done something to avoid the accident? And how would liability be apportioned in a comparative fault jurisdiction like Florida? What share of fault, if any, could be attributable to the other vehicle involved in the accident if it, too, were fully automated?
The answers to these questions remain unclear. Level 5 or fully automated cars are still in their concept stages and are not likely to hit the roads anytime soon. But if Florida’s Senate Bill 1066 is any indication, the future of automobile negligence promises to be anything but certain.