Alletta Brenner explores how existing liability rules could affect speed and how driverless trucks are adopted
Shortages of truck drivers are a major reason for recent supply chain issues, but the problem is not new. Lack of drivers has been the most significant issue affecting heavy trucking over the past five years in industry surveys. And, according to experts, it is unlikely to improve. The American Trucking Associations predicts that the current shortage of over 60,000 drivers will increase to over 160,000 by 2028.
Many have pointed to driverless trucks as a solution, and while fully autonomous trucks requiring no human intervention may be years away, progress towards full autonomy has accelerated. In Nevada, Daimler Truck North America is testing driverless trucks at highway speeds with the goal of bringing SAE Level 4 trucks on public roads by 2030. Other developers of this technology, such as TuSimple , report equally rapid progress, with plans for self-sustaining freight routes. along strategic transport corridors.
Discussions of how quickly this dream will become a reality tend to focus on technological and regulatory hurdles, but another important factor is the risk of liability for accidents involving driverless trucks. Concerns about the risk and cost of litigation already loom large in the traditional trucking industry, often listed as a top concern alongside driver shortages. Ultimately, such concerns could hinder the use and acceptance of this technology.
Disputes over liability for damage caused by an accident are usually resolved through the court system. Although each state has its own system of laws to deal with such disputes, the law has, with few exceptions, generally evolved toward an allocation of liability based on guilt. Faced with the risk of potential litigation, companies can take many steps to reduce and spread the cost of that risk, including purchasing insurance, which can cover both the damage caused by an incident and the cost of defending an trial. The more expensive it is to mitigate the liability risk associated with driverless trucks, the slower their widespread adoption is likely to be.
In the long term, increased automation should reduce the number of accidents caused by human error, thereby reducing the overall number of accidents and thus reducing liability risk. But in the short term, the cost of mitigating liability risk for driverless trucks could be higher than for conventional trucks. One reason is uncertainty about how existing legal frameworks will apply to accidents involving driverless trucks. Under current legal rules, liability can be distributed among many entities. Accordingly, an injured plaintiff could sue not only the driver of a truck, but also the trucking company, the manufacturer of the vehicle (and its components), and even the dealer who sold the truck.
Decisions as to whether the vehicle was faulty, and similarly, who should be responsible, are only made after an accident has occurred. And in most states, a vehicle can be considered defective even if the manufacturer has complied with all standards and regulations and exercised an appropriate level of care in its design and manufacture. These rules make it difficult to assess liability risk in advance, especially when it comes to new and emerging technologies. For example, one of the tests to determine if a product is defective is called the consumer expectations test. This test asks the jury to weigh the risks and benefits of a product’s design and provides that a product is defective if it fails to meet the expectations of a hypothetical reasonable consumer. But how does a jury decide what a reasonable consumer should expect with complex products like self-driving trucks that have until recently been the stuff of science fiction? In the short term, uncertainty about the application of these legal rules could make lawsuits involving this technology more difficult and costly to settle.
In the short term, the cost of mitigating liability risk for driverless trucks could be higher than for conventional trucks
The complexity of driverless trucks could also have other implications for the cost of litigation. For example, if the drivers are excluded, the lawsuits are likely to focus on technical issues regarding the design and operation of the vehicle. Although some features of driverless trucks, such as sensors and event data recorders, can provide useful evidence in determining fault in the event of an accident, this information does not necessarily facilitate the resolution of liability disputes. On the contrary, the more technical the process of determining the cause of an accident, the more likely it is that expensive experts will be needed and deployed by both parties. These factors could make the results of litigation less clear and increase litigation risk and expense, particularly in the short term.
The Potential of Perceived Risk to Slow Adoption
The negative effect that an increased risk of litigation could have on the adoption of driverless trucks could be amplified by exaggerated perceptions of this risk. The story of the elevator illustrates this problem well. 150 years ago, when passenger elevators were first developed, the public was terrified of using them and building owners were reluctant to install them. It was not until elevator manufacturers embarked on an international public relations campaign to demonstrate the safeties built into elevator design that they gained the public’s trust in elevators as an indispensable tool of the lift. modern architecture.
Today, the same type of hesitation affects consumer opinion about self-driving cars, as many report that fear and uncertainty about the loss of human control inhibits their willingness to try such technology. Similarly, fear of litigation can slow a company’s adoption of new technology. This perception is directly linked to the so-called “nuclear” verdicts, ie cases of damages exceeding 10 million dollars, which have exploded in recent years. According to a study of truck accident cases litigated between 2006 and 2019, the frequency of awards over $1 million increased by more than 300% during that time. And the numbers keep climbing. In November 2021, a Texas jury awarded US$730 million in a wrongful death case stemming from a single crash where a cargo truck carrying an oversized load crashed into another vehicle.
What impact could the adoption of driverless trucks have on this trend? There are at least some reasons why such cases might tend to result in higher damage awards. With increased automation, questions about the design and manufacture of a truck are bound to be even more central to determining liability, since these are inherently systemic issues. Similarly, if juries have high expectations for the performance of driverless trucks, they might be even more willing to issue penalties for failure. Will the autonomous factor cause juries to alter their assessment of the merits of these cases, or simply alter the assignment of fault? And if juries end up deeming at least some cases involving driverless trucks worthy of high damages, how will that affect trucking companies’ perception of litigation risk? Only time will tell. But in the meantime, this uncertainty can both increase risk and the perception of that risk.
Ultimately, it remains to be seen how the law will evolve and apply to driverless trucks, and likewise, how the trucking industry will manage the potential liability risk for this new technology.
About the Author: Alletta Brenner is a complex product liability litigation attorney in the Portland office of Perkins Coie