Practice Implications for the Rise of Automated Vehicles

By Jeffrey K. Gurney

Automated vehicles will likely be the definitive disruptive technology of the 21^stcentury—in some ways, like the automobile was in the 20^thcentury.  Young lawyers today will likely experience the introduction and proliferation of highly automated vehicles.  In this blog post, I briefly introduce these disruptions and provide some advice on how to prepare for them.     

Motor Vehicle Crashes

There are two principal implications for the legal community with respect to vehicle crashes in an automated vehicle world.  First, there are likely going to be fewer automobile crashes than there are today.  Second, the types of claims asserted when these crashes do occur may differ than the types of claims asserted now.  

Vehicle automation should mean fewer vehicle crashes.  In 2015, there were a total of 6,296,000 motor vehicle crashes in the United States.  Of those crashes, 1,715,000 involved an injury to a person, and 32,539 people died in crashes. In 2017 (the total accident statistics have not been released for 2016 and 2017), 37,150 people died in automobile crashes.  The overwhelming cause of the crashes (approximately 95%) is driver error.  People were intoxicated, drowsy, distracted, and the like, or they exercised poor judgment or lack general driving skills.  Automation involves a shift of control over the dynamic driving task from the traditional driver to the computer system in the vehicle.  The computer systems that operate highly automated vehicles will not drink alcohol, get drowsy, or send text messages while driving.  The computer system will perceive its surroundings and react better and faster than mostly all drivers.  Finally, crashes due to faulty software may be correctable through simple over the air updates.  In summary, there will probably be significantly fewer automobile crashes as we enter into an automated vehicle world.  This is a good thing.  For young attorneys whose practice significantly consists of cases related to motor vehicle crashes, they will want to consider diversifying their practice areas.  

The crashes that do occur with vehicle automation features engaged will create new opportunities and challenges for attorneys asserting and defending claims on behalf of their clients.  Any automation feature likely results in responsibility of some aspect of the driving experience being shifted away from the traditional driver to the manufacturer of the vehicle or some other component manufacturer.  Whether this shift in responsibility over an aspect of driving is sufficient to shift legal responsibility for an ultimate crash is a topic of much discussion in the legal academic community.  Savvy plaintiff attorneys may use that shift of control to create and assert new types of claims against manufacturers and other parties with more significant assets than the traditional “at-fault” driver. Defense attorneys and those advising vehicle manufacturers will want to begin the risk mitigation process today and not wait until automated features are ultimately deployed.  Risk mitigation is not limited to those who represent OEMs; attorneys who represent servicing and repair shops, for example, need to advise their clients on the risks created by servicing and repairing vehicles that have automation features.  Attorneys who represent insurance companies may, depending upon the factual circumstances and the type of automation feature, start asserting claims against manufacturers.    

Criminal Law

Vehicle automation will potentially invite complexity in the enforcement of traffic laws and may lead to new types of crimes.  With highly automated vehicles, defendants may begin challenging the imposition of traffic tickets when their vehicles malfunction and commit traffic offenses.  Defendants also may challenge driving under the influence tickets when they are not driving such highly automated vehicles.

Connected and automated vehicles will likely be information machines.  New technology in vehicles may present opportunities for criminal defense attorneys to present conclusive evidence about the vehicle that may, in some cases, serve to rebut testimony from police officers.  In other cases, the technology in vehicle may rebut the testimony of the defendant.       

Government

Automated vehicles will likely have numerous impacts on governments.  First, vehicle automation may impact state and local revenue.  High levels of automation may be deployed entirely through electric powered vehicles, which would erode a gas tax.   High levels of automation will also likely mean fewer traffic violations, and thus, potentially less need for police officers to monitor traffic and less revenue for local governments.  Governments that rely on parking fees for revenue also may need to find alternative funding mechanisms, as lower cost parking that is readily accessible to automated vehicles becomes available.  Second, higher levels of automation may effect lifestyle choices and city layouts, as will be discussed below.  Third, governments may need to build infrastructure that helps or interacts with, the so-called smart infrastructure, automated vehicles or connected vehicles.  Attorneys advising these governments will want to minimize risk to governments for crashes that may be related to faulty or defective infrastructure.  Those attorneys who are involved in government or advising government will need to think creatively and remain flexible as we enter the vehicle automation world.  

City Layouts

Higher levels of automation may effect lifestyle choices and city layouts.  Human driving and daily commutes are significant costs that most people seek to avoid.  The ability to engage in other activities in our vehicle will significantly reduce these costs, such that people may be more willing to live further away from city centers. For those attorneys who work with commercial clients on long term leases, they may want to start discussing with their clients the risks that may be created by vehicle automation.  This may mean that current high demand shopping and real estate locations may not be as important or valuable in the future. Similarly, there may be less need for parking within city limits and more need for drop off lanes—the automated vehicle may drop people off downtown and then park in the outskirts of town or provide ridesharing services to other people.  Government officials and government attorneys will want to consider the dynamic needs of cities over time.  

Jeffrey Gurney is an associate at Nelson Mullins. His practice area includes private and public mergers and acquisitions, corporate reorganizations, corporate governance matters, corporate and business entity law, nonprofit law, taxation, and complex estate planning.