Monday, March 19, 2018

Driverless Cars and Workers’ Compensation: Into the Wild Blue Yonder

Very early in the morning today, Monday, March 19, a vehicle operated by an Uber driver struck and killed 49-year-old Elaine Herzberg, who may have been walking, or riding, a bicycle across a major road. The colliding vehicle was, according to Tempe, Arizona police, in “autonomous” mode at the time of the crash, but a vehicle operator was nevertheless behind the wheel. Uber apparently began experimentation with autonomous, driverless cars in Arizona following a ban in California (pending further study). The Governor was reportedly elated at their arrival.

Workers’ compensation issues in connection with the tragedy quickly surface. Was the Uber driver an employee of Uber or an independent contractor?  While that’s also a torts question, it is certainly possible to imagine a non-driving, working “driver” being injured in such circumstances. Perhaps the bicyclist/pedestrian was on her way to work (it was 5 a.m.).  What is the significance of the car having been in autonomous mode?

I read about this sad incident just after reading a story at WorkCompCentral (paywall) about an increase in traffic fatalities over the last decade. According to the story,

Motor vehicle fatalities in the U.S. surged to 40,327 in 2016, then dropped about 1% last year to 40,100, the National Safety Council reported. The 2016 total was 7% higher than in 2015, which in turn was 7% higher than 2014.

About 4.57 million people were injured seriously enough to require medical attention in motor vehicle crashes in 2017, according to NSC. That figure that was down about 1% from 2016.

At the same time, transportation incidents were the leading cause of work-related deaths in 2016, accounting for 40% of fatalities, the U.S. Bureau of Labor Statistics reported.

The Brookings Institute has opined that “automation will dramatically increase safety on the highways by reducing both the number and severity of accidents.” On the other hand, some worry that, for those who are injured, manufacturer-mandated compulsory arbitration (agree, or buy your car elsewhere) may result in dramatic under-compensation of victims. Brookings argues that, with respect to products liability, significant modification of substantive tort law would be unwise. One wonders whether states like Arizona will agree.  

As injury lawyers realize, compensation of traffic accidents involves a complicated bundle of remedies. It is very hard to predict whether driverless cars will be safer than human-piloted automobiles, especially when they achieve very high volumes on the highways. I think driverless cars very likely will be safer. One thing is certain: the mixes of liability are going to change dramatically. If car crashes are handled to any substantial degree in arbitration, recovery for injury is likely to be quite limited (which is why safety advocates are concerned). It stands to reason that when third-party recoveries are limited, the stakes will rise in workers’ compensation litigation.

None of us can be sure where all this is going. It reminds me very much of the history of the emergence of railroads in the 19th century. Somewhat surprisingly, for much of the latter part of that century, railroads were in bankruptcy. Train engines burnt down towns. Workers were grievously injured. Railroad labor and management disputes led to the Great Upheaval of 1877. Courts thereafter became much more involved in labor disputes. In other words, railroads changed everything. None of the episode was foreseeable. Much of it is difficult to comprehend even in hindsight.

My 12-year-old son—who is, as he will eagerly tell you, deeply knowledgeable of futuristic trajectory—would probably insist that it is the flying cars that will matter (he assures me they are just around the corner, so to speak), and he may be right. But every workers’ compensation specialist will feel compelled to acknowledge that “something” big seems to be coming—a something that may have a tremendous impact on the workplace. I will repeat the statistic: transportation incidents were the leading cause of work-related deaths in 2016, accounting for 40% of fatalities.

Michael C. Duff

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