Before we can discuss the effects automobile autonomy will have on litigation, we have to understand what automation means in the context of motor vehicles. In 2013, the Society of Automotive Engineers (SEA) issued a standard outlining the levels of driving automation. The levels go from zero, which means no automation, to five, which describes a fully autonomous vehicle.

A Level 1 vehicle, or a “driver assistance-”equipped vehicle, uses a mix of driver input and system input to execute the steering and acceleration/deceleration of the vehicle, but require the human to monitor the driving environment and act as the fallback or fail safe in case of an emergency. These features, which are readily available today, are marketed as “adaptive cruise control,” “parking assistance with automated steering” and “lane keeping assist.”

At Level 2, the system itself controls both steering and acceleration/deceleration. However, the system relies on the human driver to monitor the driving environment and take over should the system fail to respond properly to the environment. At Level 3, the autonomous functions ramp up a bit, and under certain conditions (most commonly highways), the system can both control the steering and speed, and should also be able to monitor the environment and make adjustments (i.e., theoretically the human driver no longer has to have complete focus on the road).

However, Level 3 still requires—under the SEA standard—that the human driver act as a fallback for “dynamic driving” tasks. At Level 4 and 5, the vehicle itself is responsible for all things, including as the fallback for “dynamic driving” tasks. What differentiates Level 4 and 5 is that Level 4 can only function completely autonomous under certain road conditions and it is up to the driver to engage the system and its appropriateness under the conditions present; for instance, severe weather may restrict Level 4 use.

Meanwhile, a Level 5 vehicle should only rely on a human for setting the destination and starting the car. All other functions, at this level, should be left to the car. At this level, the human is no longer the driver and is merely a passive passenger.

Litigating a Case Involving an Autonomous Vehicle

Today, most motor vehicle cases revolve around the question of whether the adverse driver's actions or inactions were the proximate cause for the motor vehicle accident. However, what do you do when the case involves either a plaintiff or a defendant who was occupying an autonomous vehicle at the time of the accident?

At this point, most vehicles on the road with autonomous capabilities are Level 1 or 2, this includes Tesla's AutoPilot, which has been involved in a number of crashes including a recent fatality in Florida (in that case, the human driver was infamously watching a DVD of “Harry Potter” while on AutoPilot). As such, for the most part, most auto accident litigators will not have to be concerned with the level of autonomy of the vehicle(s) at issue, since Level 1 and 2 vehicles rely on the human driver to actively monitor the environment and act as the fail safe. Accordingly, arguably, an accident involving the use of a Level 1 or 2 vehicle would still revolve around the human driver's actions in choosing to activate or deactivate her car's limited autonomous functionality.

However, as car manufacturers begin putting Level 3 and higher vehicles on the road, auto accident litigation will have to change. Not only will an attorney have to file suit against the defendant driver, but will likely have to add the vehicle manufacturer as a co-defendant; if the autonomous technology is built, designed, installed or “programmed” by another party or parties, the list of potential defendants would potentially grow. While, the addition of these parties theoretically is a good thing for most plaintiffs attorneys (and defense attorneys—more defendants equals more defense attorneys), since the addition of these corporate defendants will likely mean deeper pockets on the other side, the straightforward automobile negligence case just ballooned into a much more expensive and complex products liability action. An action which, by nature, will necessitate the use of additional liability experts.

In fact, most automobile accident cases, involving Level 3 or higher, would have to include a “design defect” claim against the vehicle manufacturer. Moreover, human defendants will likely have to file cross-claims for indemnification against manufacturers under the theory that the autonomous functionality was used properly and reasonably relied on by her to keep her and other drivers on the road safe.

While this could be a boon to both plaintiffs and defense attorneys in cases where the underlying injuries are sufficiently serious to justify the expense, the typical soft tissue injury case may no longer be economically feasible to pursue or properly defend because of the added expense of having to litigate a products liability claim.

Where Have All the Trial Lawyers Gone?

Even more troubling for the lawyers that practice in this space, is the question of “what happens when—and it is now a when and not an if—most cars on the road are functioning at a Level 5 autonomous level?” In that world, theoretically, supercomputers are doing 100 percent of the driving and therefore the human owner is theoretically no longer subject a negligence claim for simply riding in a vehicle that may no longer have any accessible manual controls.

As the U.S. Department of Transportation noted in its “National Motor Vehicle Crash Causation Survey” published in 2015, 94 percent of all car accidents are caused by human driver error. Accordingly, eliminate the human driver and you potentially eliminate 94 percent of the car accidents. While products liability claims may rise slightly to compensate, the volume of automobile personal injury cases will drastically be reduced to almost nothing—especially when you consider that the less severe injury cases will be too expensive to take to trial. Additionally, this may be further reduced should state or federal officials step in to place restrictions or caps on tort claims against vehicle manufacturers. Meanwhile more widespread issues with the vehicles will likely be resolved via class action rather than by individual claims.

In the 1992 “Civil Justice Survey of State Courts,” it was estimated that about half of all civil cases filed across the nation were tort claims. Of those tort claims, approximately 60 percent of the claims were automobile accident related. Accordingly, if you get rid of 94 percent of those claims, more than half of all tort claims currently filed in the United States would be eliminated. The implication of this on both the plaintiffs and defense bars' workload would be enormous. Not to mention the secondary effect that the significant drop in lawsuits would have on the casualty insurance marketplace, court reporters, the judicial system, and law schools—which likely would be hit hard by the lack of available jobs in plaintiffs' or insurance defense firms.

While, I am sure we, attorneys, will find another way to survive, it is clear that the rise of the autonomous car will be a game changer in our industry and will have the potential to be both a boom and a bust.

Will Sylianteng is managing partner of WES Litigation Group in Doylestown. He focuses his practice on civil litigation and insurance.

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