'Will there be accidents? Absolutely': Lawyers preparing for self-driving semi-trucks

Legal experts offer insights into how courts will handle accidents involving autonomous vehicles.

“Lawyers are going to have to start thinking about different defendants,” said plaintiff attorney Amy Witherite of the Witherite Firm based in Dallas, Fort Worth, Atlanta and Chicago. Credit: scharfsinn86/Adobe Stock

Artificial intelligence. Self-driving vehicles.

Both involve decision-making models with the potential to accelerate a new wave of liability litigation that some attorneys are already beginning to prepare for.

As autonomous vehicles begin to make their way into the commercial sector with self-driving tractor trailers now test-driving along stretches of Georgia and Texas interstates, personal injury, auto tort and product liability litigators say now is the time for lawyers to familiarize themselves with legal opportunities and potential challenges as autonomous vehicular litigation begins to emerge.

Safety of the autonomous technology

From wrongful death to personal injury complaints, a handful of claims involving autonomous vehicle collisions have sparked civil and criminal litigation in Arizona, California, Florida and Texas.

On Oct. 26, 2023, General Motors’ nationally suspended Cruise, its driverless ride-hailing service subsidiary, after California regulators ordered the “robotaxi” operator to remove its self-driving cars from Golden State roadways.

“Based upon the performance of the vehicles, the department determines the manufacturer’s vehicles are not safe for the public’s operation,” read the California DMV statement. ”The manufacturer has misrepresented any information related to safety of the autonomous technology of its vehicles.” 

But that hasn’t stopped innovators from pushing ahead with self-driving delivery trucks amid a national shortage of truck drivers.

Companies like Georgia-Pacific have already partnered with Koch Industries’ Gatik and KBX Logistics to deliver consumer products via self-driving trucks to more than 30 Sam’s Club locations in the Dallas-Fort Worth area.

“The trucks will deliver goods 24 hours a day, seven days a week, and are expected to travel up to three hundred miles daily,” read a Georgia-Pacific statement announcing the partnership in June 2022.

Meanwhile, Kodiac Robotics and Pilot Co. are currently testing the hauling of goods between Dallas and Atlanta with self-driving 18-wheelers — manned with a standby human safety operator — alongside unsuspecting motorists. In August, the companies opened Georgia’s first autonomous truck terminal 30 miles west of Atlanta.

“Located in Villa Rica, Georgia, the truckport will serve as a launching and landing point for Kodiak’s autonomous trucks in the Atlanta area,” read a statement released by Pilot in August. “The Pilot-owned facility will be a transfer hub for manual first- and last-mile deliveries and will be used to conduct maintenance, refueling and enhanced inspections specifically for self-driving trucks.”

As autonomous vehicular technology continues to emerge, so, too, do opportunities for litigation. But with the evolution occurring amid a backdrop of limited regulation, litigators note legal hurdles likely also lay ahead.

Start thinking about different defendants

Plaintiff attorney Amy Witherite has made a name for herself among both legal professionals in the auto tort community and the general public with relatable, yet informative 1-800-TruckWreck radio advertisements. The Texas Tech University School of Law graduate with more than 22 years of legal experience told Law.com that, while there’s “maybe only about a dozen of cases across the whole country right now,” litigators interested in autonomous vehicular litigation should begin preparing now.

“Lawyers are going to have to start thinking about different defendants,” Witherite said. “We have some states that have given immunity to the trucking companies. So, you’re looking at a trucking company [and] a truck driver, which may or may not have immunity, depending on the state where the venue is. Then you’ve got to look at the manufacturers of the tractors. Then you have to look at, ‘Is the manufacturer really responsible, or is it the software developer who’s created … the self-driving system?’ Then you’ve got to look at the component part manufacturers.”

With autonomous-vehicle manufacturers specifying the need for those seated in the driver seat to remain alert and capable of intervening in the event of a self-driving error, Witherite pointed out auto torts involving such vehicles would likely result in many defendants deflecting blame.

“Whether it’s killing people or damaging commercial buildings or structures, … they’re all going to point fingers at each other and say, ‘Well, it’s not our fault,’” Witherite told Law.com. “When you start giving immunity to one potential defendant over another … the only person who’s going to suffer is whoever got hurt.”

From defective software to improper installation and negligent training of human interveners, Witherite noted attorneys interested in emerging autonomous vehicular litigation would need to vet a variety of causes of actions. But getting the answers needed to support their clients’ cases may not be an easy haul, given the current state of the industry’s regulation.

With more than 24 years of experience litigating automotive product liability matters, Georgia attorney Jeff R. Harris has made it a point to keep abreast of technological developments including autonomous vehicles.

“There’s a lot of appeal to having a fully autonomous truck that works because the fully autonomous truck doesn’t get tired and doesn’t have hours of service violations. It isn’t texting people [or] taking drugs. It’s not doing all the kinds of horrible things that we see [some] truck drivers occasionally do,” Harris told Law.com. “The concept and the hope is great, but there’s going to be, to me, a pretty scary transition period.”

The Savannah-based Harris Lowry Manton partner noted that Georgia legislation enacted in May 2017 enabled the operation of self-driving vehicles with and without human drivers, but that little had been done to regulate the technology’s evolution since.

While test-driven self-driving tractor trailers are currently manned by human beings capable of intervening in the event of system error, Harris noted limited regulation enabled manufacturers to provide limited disclosures about their testing results.

“It’s this test phase, how successful it is and what happened during the test that I think we all need to be monitoring carefully,” Harris said. “I think the scariest thing is to have unregulated autonomous vehicles where you’re just relying on the manufacturer to tell you that ‘everything just went smoothly.’”

In addition to grasping how much test data exists and what it reveals, Harris said he’s curious to learn how many times human drivers have had to “take over” and under what conditions.

“Will there be crashes? Absolutely, there will be. There’s zero doubt that this stuff is [not] going to roll out flawlessly and seamlessly,” Harris said.

Turns out, it’s already happened.

Transparency is so important

In May 2022, a self-driving truck operated by Waymo LLC, formerly known as the Google Self-Driving Car Project, got run off Interstate 45 in Texas by another trucker. The human safety operator inside the autonomous semi sustained “moderate” injuries during the hit-and-run incident that occurred 35 miles south of Dallas, according to a Techcrunch.com report.

More than a year later, Waymo suspended its driverless truck tests in Texas, opting to “focus [its] efforts and investment on ride-hailing,” instead.

But with a San Francisco woman struck and injured by a similar ride-hailing taxi operated by Cruise prior to its suspension, consumer claims against such technology may soon be on the rise.

“Transparency is so important … because when we get to a place where these vehicles are let go and they’re allowed to be fully autonomous, I think as a society and as lawyers and as regulators, we want to know what was happening in those tests,” Harris told Law.com.

The Mercer University School of Law graduate anticipated prospective defendants arguing the autonomous technology is only as good as its maintenance when attempting to shift blame for damage claims. He also foresaw defenses arising from myriad contributing variables ranging from issues with the roadway to autonomous vehicle sensory technology being “fooled” by changing conditions like weather, unstriped lanes in a construction zone or the sudden presence of windblown inanimate objects.

Despite the potential for legal claims, the Georgia litigator said he didn’t expect to see an influx of lawsuits surrounding autonomous tractor-trailers any time soon. According to Harris, the self-driving vehicles still had much ground to cover.

“If we don’t have fully autonomous aircraft and fully autonomous trains, I’m not sure why everybody thinks we’re suddenly going to have fully autonomous trucks,” he said. “I think we’re going to see fully autonomous delivery drones before we see fully autonomous trucks because technologically that’s an easier sell. You can have a drone deliver a package to a landing field and then take off and fly with less technological challenges than having a truck driving through a city street. I think that’s probably more likely to be something … there’ll be potential litigation in the next couple of years on because that’s more likely to roll out.”

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