Thursday, April 13, 2017
In Forbes, Michael Krauss opines on "What Should Tort Law Do When Autonomous Vehicles Crash?". The gist:
How should tort law deal with these kinds of future problems? In my view, the answer follows from a sound understanding of the more sensible elements of America’s often troubling products liability law:
- In the case of manufacturing defects, manufacturers of autonomous vehicles should be liable to victims for accidents that occurred. Manufacturers have marketed a product that does not perform as advertised, and this misrepresentation provides both the moral grounds for liability and the appropriate economic incentives to perform efficient (not perfect – no one is perfect) quality control.
- In the case of informational defects (failure-to-warn problems), manufacturers should be liable only if they were negligent (that is, if a reasonable manufacturer would have provided a better warning or better instructions). If, as seems likely, legislation or regulations stipulate what warning an autonomous vehicle should contain, compliance with such law or regulation should exclude liability, just as it should (for example) for the mandated warnings on prescription drugs.
- In the case of design defects, the rule should again be based on negligence– was this design choice made by the manufacturer a good one, all things considered? Very important moral issues arise here (see my two moose examples above) and in some cases informed consent of risks imposed by programming would likely be required. This is where design and information defects merge, and so it is totally appropriate that the same legal standard apply in both cases. These issues could be left to properly instructed juries’ evolving notions of reasonable care under the Common Law, or could be pre-empted by regulators (who might choose to maximize social utility at the cost of precluding driving choices heretofore felt to be reasonable). Such regulation should be very carefully debated before being adopted – but if it is adopted it should bind tort tribunals until public outcry leads to its change.