By Paul Jordan, Associate, Sutton | Booker | P.C.
Autonomous vehicle technology is advancing, leaving other industries such as insurance and real estate to predict how they will be affected. Within the context of motor vehicle accident litigation, a shift is expected in both the amount of litigation, as well as the legal theory by which damages will be sought.
The degree of autonomy in which a particular vehicle can operate is broken into six levels defined by SAE International (Society of Automotive Engineers): Level 0–no automation; Level 1–automated steering or speed, but not both simultaneously; Level 2–automated steering, braking, and acceleration; Level 3–most aspects of driving are automated, including scanning the environment with the car prompting the driver to navigate more complex situations; Level 4–complete automation under certain conditions; Level 5–complete automation on any road in any condition. As increased levels of automation are achieved, the task of driving shifts from the driver to the vehicle. Two things will correspond with this relationship regarding motor vehicle accident litigation: generally, motor vehicle accidents will decline in frequency and severity, and litigation theory will shift from traditional negligence to products liability.
Automated technology is expected to make automotive travel increasingly safer, reducing the frequency and severity of auto accidents. Current data on the use of crash avoidance features such as front crash prevention technology already suggests a decline in accidents by those vehicles equipped and using autonomous technology. KPMG predicts the increase in sophistication and use of autonomous technology will result in a potential 90% decline in accident frequency by 2050. A drop in accident frequency will naturally reduce the number of lawsuits based on motor vehicle accidents—by some predictions, significantly (An estimate by CNBC predicts this specific type of litigation, which accounted for 35% of all civil trials in 2005, “will be all but eliminated.”).
Additionally, as higher levels of automation are reached, litigation theory will shift from negligence to products liability. Currently, most lawsuits involving a motor vehicle accident are based on negligence. This is appropriate considering that about 90% of motor vehicle accidents are directly related to driver error. However, a distinct threshold is reached at Level 3 automation when the monitoring of the driving environment shifts from the driver to the vehicle. At Level 3 automation the vehicle monitors the driving environment and alarms the driver when the vehicle encounters a situation that it cannot navigate on its own. It is at this point when the assumption that the driver is liable for the actions of the vehicle must be questioned. At Level 3 and above, there must be a determination as to whether responsibility falls to the driver, the manufacturer, or both. As levels of automation increase, that answer is expected to shift with more frequency toward the manufacturer. Possibly seeing the writing on the wall, at least one car manufacturer, Volvo, has already stated that it will accept liability when a Volvo is in an accident while in autonomous mode. Although, it has yet to be seen in practice, consensus seems to indicate that because liability will be focused on the manufacturer, damages are more appropriately sought under a products liability theory.
Autonomous vehicle technology will increase safety, lowering the frequency and severity of motor vehicle accidents. This in turn will dramatically reduce the number of lawsuits based on motor vehicle accidents. The lawsuits that are filed will shift from claiming damages on a theory of negligence to products liability. Of course, this is all in the future, right? Well… currently, vehicles with Level 1 and Level 2 automation are on the road. At least one manufacturer, Audi, is already implementing Level 3 technology in its 2019 Audi A8, although not initially in the U.S. We are now reaching the Level 3 threshold. Fully automated prototypes are already on public roads, becoming more capable every day. It appears the future of motor vehicle accident litigation has begun.
 Path to Autonomy: Self-Driving Car Levels 0 to 5 Explained, Car and Driver (Oct. 2017), https://www.caranddriver.com/features/path-to-autonomy-self-driving-car-levels-0-to-5-explained-feature; Kyle Hyatt & Chris Paukert, Self-Driving Cars: A Level-by-Level Explainer of Autonomous Vehicles, Road Show by CNET (Mar. 29, 2018), https://www.cnet.com/roadshow/news/self-driving-car-guide-autonomous-explanation/.
 See Ryan Mardini, Are Autonomous Vehicles Really Safer than Humans?, Before the Bar (Apr. 4, 2018), https://abaforlawstudents.com/2018/04/04/are-autonomous-vehicles-really-safer-than-humans/.
 Joseph Schneider et al., The Chaotic Middle | The Autonomous Vehicle and Disruption in Automobile Insurance, KPMG, at 19 (June 27, 2017), https://assets.kpmg.com/content/dam/kpmg/us/pdf/2017/06/chaotic-middle-autonomous-vehicle-paper.pdf; Joel Barbier, Self-Driving Cars Will Disrupt More than the Auto Industry. Here Are the Winners and Losers, CNBC (May 3, 2017), https://www.cnbc.com/2017/05/03/self-driving-cars-will-disrupt-10-industries-commentary.html.
 Schneider et al., supra note 3, at 21.
 Id. at 20.
 Barbier, supra note 3.
 See Ken LaMance, Negligence in a Car Accident Lawsuit, LegalMatch (June 7, 2018), https://www.legalmatch.com/law-library/article/negligence-in-a-car-accident-lawsuit.html; Can Someone Sue for Negligence in a Car Accident, The Perecman Firm, P.L.L.C. (June 18, 2014), https://www.perecman.com/blog/2014/june/can-someone-sue-for-negligence-in-a-car-accident/.
 Brett A. Ross, Automated Vehicle Lawsuits How Will We Litigate the Auto Crash of the Future?, The Brief (American Bar Association, Tort Trial & Insurance Practice Section), at 44 (Winter 2018).
 See Colin Payne, Driverless Cars – The Race to Level 5 Autonomous Vehicles, engineering.com (Aug. 16, 2017), https://www.engineering.com/DesignerEdge/DesignerEdgeArticles/ArticleID/15478/Driverless-Cars–The-Race-to-Level-5-Autonomous-Vehicles.aspx; Mardini, supra note 2.
 See Mardini, supra note 2.
 Ross, supra note 8, at 44.
 Kirsten Korosec, Volvo CEO: We Will Accept All Liability When Our Cars Are in Autonomous Mode, Fortune (October 7, 2015), http://fortune.com/2015/10/07/volvo-liability-self-driving-cars/.
 Ross, supra note 8, at 44; Schneider, supra note 3, at 19.
 See Path to Autonomy: Self-Driving Car Levels 0 to 5 Explained, supra note 1.
 Bengt Halvorson, Traffic Jamming: In the 2019 Audi A8, We Let Automated-Driving Tech Take the Wheel, Car and Driver (Sep. 25, 2017), https://www.caranddriver.com/news/traffic-jamming-in-the-2019-audi-a8-we-let-automated-driving-tech-take-the-wheel; Automated Driving at a New Level: the Audi AI Traffic Jam Pilot, Audi MediaCenter (Sep. 7, 2017), https://www.audi-mediacenter.com/en/press-releases/automated-driving-at-a-new-level-the-audi-ai-traffic-jam-pilot-9300; Chris Paukert, Why the 2019 Audi A8 Won’t Get Level 3 Partial Automation in the US, Road Show by CNET (May 14, 2018), https://www.cnet.com/roadshow/news/2019-audi-a8-level-3-traffic-jam-pilot-self-driving-automation-not-for-us/.
 From Here to Autonomy: Autonomous-Vehicle Technology Is Advancing Faster than Ever, The Economist (Mar. 1, 2018), https://www.economist.com/special-report/2018/03/01/autonomous-vehicle-technology-is-advancing-ever-faster.