By William C. Ourand
Self-driving cars are already being tested, and will become increasingly more common in the years to come. There are good reasons to be optimistic about this technology, as it has the potential to reduce crashes. But make no mistake: the battle over tort liability for self-driving car crashes has already begun, and there is a very real possibility that automakers and software companies may secure a sweeping victory in the form of federal preemption. We are at a critical juncture in this fight as the National Highway Traffic Safety Administration (“NHTSA”) just released its initial guidance on the topic. NHTSA’s guidance contains several unfortunate statements which may foreshadow a massive power grab by federal bureaucrats—one that could completely displace state law and deny Floridians the right of access to the civil justice system.
This article will analyze the troubling aspects of the NHTSA guidance, expose the hollow arguments advanced against automotive products liability law and in favor of federal preemption, and provide recommendations for consumer advocates who wish to remain informed and engaged in the fight.
NHTSA’s Troubling Statements
NHTSA’s 116 page policy statement, published in late September, makes it clear that the Agency is firmly intent on following “an ambitious approach to accelerate the [self-driving car] revolution.”1 To achieve this objective, NHTSA’s guidance provides best practices for manufacturers, and a model state policy that the agency hopes will avoid “a patchwork” of “incompatible” state laws.2 NHTSA also provides extensive discussion as to its current regulatory powers, regulatory powers it may ask Congress for in the future, and the roles that the states and the federal government should play in the oversight of self-driving cars.3 These last three points of discussion are where the troubling statements are featured.
Most notably, in the section entitled “The Federal and State Roles,” NHTSA cryptically observes that “[t]he Supreme Court has . . . found that State laws may be preempted if they stand as an obstacle to the accomplishment and execution of a NTHSA safety standard.”4 In support of this proposition, NHTSA cites to SCOTUS’s decision in Geier v. American Honda Motor Co., 529 U.S. 861 (2000). This citation is particularly alarming because the Geier decision represents one of the worst losses consumers have ever suffered on the federal preemption battlefront.
In Geier, the Court held that so-called “no-airbag” products liability lawsuits—which alleged that certain vehicles were defective due to having been designed, made, and sold without airbags—were preempted because of what the Court perceived to be a conflict with federal “objectives.”5 Remarkably, the Court looked past the Motor Vehicle Safety Act’s express saving clause, which specifically preserves state tort lawsuits, and instead relied upon mere “comments” made by former Department of Transportation Secretary Barbara Dole back in the 1980s, which the Court felt reflected the “Secretary’s view” in passing the regulation at issue.6 Scholars have characterized this approach as representing a particularly “aggressive” form of preemption analysis.7 And the decision was unsurprisingly followed by a wave of preemption arguments advanced by manufacturers in lawsuits across the country.8
Given this background, it is incredibly troubling that NHTSA chose to cite to Geier in its discussion of the “Federal and State Roles” in overseeing self-driving cars. Of course, it remains to be seen whether and what preemptive language, if any, NHTSA will invoke when crafting binding rules or safety standards for autonomous vehicles. At this time, the NHTSA guidance only mentions that state laws “may be preempted” if they “stand as an obstacle to the accomplishment and execution” of a standard, and no such standards have been promulgated. But it is hard to read NHTSA’s statement and citation to Geier as anything other than a warning shot over the bows of state courts.
Also troubling is the fact that NHTSA discusses the possibility of seeking large expansions of its own power from Congress, including a federal statute providing for a type of pre-market approval process for self-driving cars.9 Consumer advocates should be very wary of a pre-market approval process, as this type of approval has resulted in preemption of medical drugs and devices, among other things. Moreover, past experience has shown that products bearing a federal bureaucratic stamp of approval, like those products approved pursuant to the Food and Drug Administration’s (“FDA”) pre-market approval process, can and still do fail once they reach the market. Unfortunately, consumers, their healthcare insurers, and society as a whole often wind up bearing the full burden of injuries caused by defective medical products, as the FDA pre-market stamp of approval typically results in preemption of state tort lawsuits, with only a few narrow exceptions.10 The introduction of a similar process for self-driving cars could lead to a similar outcome, depending on the language employed in the statutes and regulations.
Finally, NHTSA also asserts that the States should determine “how to allocate liability among [autonomous vehicle] owners, operators, passengers, manufacturers, and others when a crash occurs,” and suggests that States should considering working to develop “consistent solutions.”11 NHTSA even proposes the establishment of a “commission to study liability and insurance issues and make recommendations to the States.”12 While it is refreshing that NHTSA seems to acknowledge that any such discussion should occur at the State level, the notion of developing new, “consistent solutions” is troubling. The States have already developed their own systems for allocating fault for car crashes. Each State’s tort law system has methods to attribute fault to humans (auto negligence claims), machine defects (products liability), or other factors (i.e. roadway maintenance problems). NTHSA fails to provide any reason why these current state law remedies will be unworkable in the future.
Products Liability Should Remain a Vital Part of Our System
While NHTSA only recently published its initial guidance on autonomous vehicles, academics and other legal commentators have been discussing and debating liability for self-driving car crashes for almost a decade. Those arguing in favor of preemption of state tort law invoke the same general arguments: namely, they claim that federal regulators are better at enacting and enforcing safety standards than civil juries,13 that tort liability “may lead to inefficient delays in the adoption of these technologies,”14 and that products liability law is incapable of dealing with this new technology.15 These arguments are hollow and fail to account for several critical differences between federal regulation and state tort litigation.
At the outset, there is simply no evidence that NHTSA will excel at developing and enforcing the robust kinds of safety standards needed to protect the public. NHTSA, like other federal agencies, has been historically underfunded, lacking in technical expertise, and prone to “agency capture” concerns.16 It is tragically unsurprising, then, that critical safety defects like the exploding Takata airbags and GM ignition switch debacle were effectively concealed from the Agency for several years. The ongoing Takata airbag crisis is perhaps the most egregious example of NHTSA’s limitations, as the Agency simply rubber stamped a series of shifting explanations from Honda and Takata for many years—before media scrutiny and pressure from Congress finally forced the Agency to begin taking more drastic action.17 Put simply: NHTSA’s track record does not bode well, and it most certainly does not warrant the complete elimination of consumers’ rights to pursue state law products liability remedies.
Products liability cases also serve an important truth-finding function for society as a whole. Each and every automotive crash is unique, and the determination as to whether a product had a defect that caused or contributed to a crash must necessarily be made only after carefully reviewing the circumstances of that particular crash. The jury system allows for this type of case-by-case analysis to be conducted in open court, with each party having a fair opportunity to present their claims and defenses. Federal regulations, on the other hand, force regulators to make a generalized assessment of the risk and utility of a proposed design, often without significant, or any, real-world data to analyze.
In addition, there is simply no evidence that state tort law has somehow delayed the development of self-driving cars. At most, those advocating this position have relied upon self-serving quotes from automakers or tech companies looking to break into the field.18 These statements, however, are belied by the reality that Tesla, Uber, and other companies are already moving forward with “AutoPilot” features, self-driving rideshare operations with no human drivers, and other forms of fully or partially autonomous technology.19 Accordingly, concerns that tort liability is somehow stifling self-driving car development are speculative and un-supported by marketplace realities.
Furthermore, proponents of federal preemption also overlook the cost externalization problem of this outcome. If self-driving cars were shielded by federal law against state tort liability, then injured consumers and their families, health insurers, and society in general will be forced to shoulder the full burden of injuries caused by defective vehicles. This would starkly contrast with the public policy currently embodied by Florida’s product liability jurisprudence, which is built on the foundational principal that: “The cost of injuries or damages, either to persons or property, resulting from defective products, should be borne by the makers of the products who put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect themselves.”20
Finally, there is little reason to worry that products liability law will be incapable of resolving disputes in the autonomous vehicle context. Products liability doctrine matured over the last 100 years—the same time period during which society as a whole has grown more technologically complex. Scholars have noted that “[p]roducts liability has been one of the most dynamic fields of law since the middle of the 20th century,” and that it has “proven to be remarkably adaptive to new technologies.”21 This is particularly true in the automobile defect context, as the law has evolved and adopted along with consumer vehicles, which have already become increasingly sophisticated. In short, “[p]roducts liability law is capable of handling the new [autonomous vehicle] technology just as it handled the incorporation of seat belts, airbags, and cruise control.”22
How Consumer Advocates Can Stay Involved and Help Win the Battle
It is important to remember that the NHTSA guidance is just the federal agency’s first, non-binding word on the subject. Notably, NHTSA began working on this guidance years ago, and consulted with Big Auto and other industry stakeholders (including software companies venturing into autonomous vehicles).23 The Agency did not meaningfully consult with consumers or consumer safety advocates.24 Indeed, the guidance document itself acknowledges that “[w]hile the Agency sought input from various stakeholders during the development of the Policy, it recognizes that not all interested people had a full opportunity to provide such input.”25
Moving forward, NHTSA has stated that it intends to publish additional self-driving car guidance “sometime within the next year.”26 And the Agency has promised to host workshops for the public, and to accept input through other means.27 Consumers and consumer advocates should attend and participate in such workshops, and provide clear and unequivocal input to the effect that NHTSA should not act to strip away or usurp consumers’ state law rights to pursue products liability claims.
Of course, elections also matter. Moving forward, consumer advocates should consider whether a candidate is likely to side with Big Auto, software companies, and federal regulators, or instead will fight for consumers’ right to avail themselves of the civil justice system. While the 2016 race has already concluded, the mid-term Congressional elections are just around the corner. Significantly, NHTSA’s authority derives from the Federal Motor Vehicle Safety Act.28 And NHTSA itself has acknowledged that it may be forced to go back to Congress to seek more legal authority should it wish to enact a pre-market approval process or take other action not presently authorized by the Act.29
Self-driving cars are already here, and they are only going to become more common in the years to come. This technological breakthrough will radically transform our roadways, and may have an equally large, and potentially devastating, impact on our civil justice system. Existing preemption jurisprudence has created a gateway for manufacturers to secure an early, case-killing victory. And, unfortunately, NHTSA’s initial guidance contains several troubling statements that may foreshadow such an outcome. Accordingly, consumer advocates must remain informed and engaged to help keep the courthouse doors open for the injured consumers of tomorrow.
1 NHTSA, Federal Automated Vehicles Policy: Accelerating the Next Revolution in Roadway Safety, pp. 5-6 available at http://www.nhtsa.gov/nhtsa/av/av-policy.html (Sep. 2016).
2 Id. at 6-7.
3 Id. at 7-8.
4 Id. at 38 n. 53.
5 Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 875 (2000).
6 Id. at 868-85.
7 John C.P. Goldberg and Benjamin C. Zipursky, The Supreme Court’s Stealth Return to the Common Law of Torts, 65 DePaul L. Rev. 433, 450 (Winter 2016)
8 Jill D. Jacobson & Rebecca S. Herbig, The Transformation of Preemption Law, available at http://www.bowmanandbrooke.com/insights/~/media/Documents/Insights/News/2007/12/The%20Transformation%20of%20Preemption%20Law/Files/JacobsonHerbigFTDPreemption/FileAttachment/The%20Transformation%20of%20Preemption%20Law.
9 NHTSA, Federal Automated Vehicles Policy, supra note 1 at 71.
10 Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S. Ct. 999 (2008); Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187 (2009).
11 NHTSA, Federal Automated Vehicles Policy, supra note 1 at 44.
13 Note, CYBERLAW AND VENTURE LAW: Autonomous Vehicle Regulation: How an Uncertain Legal Landscape May Hit the Brakes On Self-Driving Cars, 31 Berkeley Tech. L.J. 851 , 871 (2016).
14 idhi Kalra, James Anderson, Martin Wachs, Liability and Regulation of Autonomous Vehicle Technologies, RAND Corporation, California PATH Research Report, UCB-ITS-PRR-2009-28 (April 2009), available at https://merritt.cdlib.org/d/ark%3A%2F13030%2Fm55x29z8/1/producer%2FPRR-2009-28.pdf
15 Note, CYBERLAW AND VENTURE LAW, supra note 13 at 862.
16 Benjamin Levin, ARTICLE: MADE IN THE U.S.A.: CORPORATE RESPONSIBILITY AND COLLECTIVE IDENTITY IN THE AMERICAN AUTOMOTIVE INDUSTRY, 53 B.C. L. Rev. 821, 863 (2012).
17 William Ourand, The Takata Airbag Defect: What Florida’s Consumer Advocates Need to Know, available at http://newsomelaw.com/blog/2015/09/08/the-takata-airbag-defect-what-floridas-consumer-advocates-need-to-know-william-c-ourand-esq/.
18 Note, Autonomous Cars and Tort Liability, 4 J. Law, Tech., & The Internet 81, 84 (2012).
19 Alex Davies, We Take a Ride in the Self-Driving Uber Now Roaming Pittsburgh, Wired, available at https://www.wired.com/2016/09/self-driving-autonomous-uber-pittsburgh/ (Sep. 14, 2016).
20 West v. Caterpillar Tractor Co., 336 So. 2d 80, 92 (Fla. 1976)
21 John Villasenor, Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation, Brookings Institute, available at https://perma.cc/UNZ3-GDE2 (April 2014).
22 Note, “Look Ma, No Hands!”: Wrinkles and Wrecks in the Age of Autonomous Vehicles, 46 New Eng. L. Rev. 581.
23 C. Richard Newsome, NHTSA’s Autonomous Car Guidelines: Top Ten Things We Learned This Week, available at http://newsomelaw.com/blog/2016/07/20/nhtsas-autonomous-car-guidelines-top-ten-things-learned-week/.
25 NHTSA, Federal Automated Vehicles Policy, supra note 1 at 8.
27 Id. at 11.
28 49 U.S.C. §§ 3010, et seq.
29 Id. at 68, 72.
Will Ourand graduated magna cum laude from the Florida State University College of Law where he served for two years on the editorial board of the Law Review. After graduation, he was inducted into the Florida State Chapter of the Order of the Coif. He is currently an associate at Newsome Melton, where he represents consumers in products liability and class action lawsuits.