December 12th, 2022

The New Reality of Civil and/or Criminal Accident Liability While Using EV Autopilot

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Author: Fred A. Balkin

Can You Be Held Responsible For An Accident Which Occurred When You Were Not Physically Driving?

For many years now autopilot has been talked about and sold to the public as the future of automobile travel, both for private passenger vehicles as well as commercial vehicles. At face value, it certainly is intriguing to the average consumer and appeals to many of us, who dream about the day we can just get into the back seat of our car and instruct it to take us wherever we desire while we read a book or even take a nap.

Commercially, the thought of not needing truck drivers for example seems like a way to substantially increase profits for trucking/shipping companies. Further, for rideshare companies and taxi companies, taking the human error potential out of driving and replacing it with computer technology, which theoretically does not make mistakes or become distracted, is also very intriguing.

So naturally when EV companies like Tesla started offering included autopilot with the purchase of a car, “enhanced autopilot” for $6,000, or better yet “full self-driving” capability for $15,000, all instantly obtainable through their mobile application if you did not initially purchase it when ordering your car, many Tesla owners jumped at the offers. This was especially true when they found out they could subscribe to “full self-driving capability” for $199.99 a month instead of paying the full price of the feature up front. Who would not want to be driven around by your car for an extra $200 a month, as opposed to hiring a driver for thousands of dollars a month?  

Initially, it is important to note that it is estimated there are over 750,000 Tesla cars equipped with some form of autopilot. Many Tesla owners that use this feature assume that autopilot means that you do not have to sit in the driver’s seat, pay attention and be ready to take control of the car at any moment. In fact, some drivers have been spotted sitting in the back seat and letting the car drive them.  On the contrary, Tesla does state in its vehicle manuals that “it is the driver’s responsibility to stay alert, drive safely and be in control of the vehicle at all times,” and provides a list of 10 conditions, with a note that there may be more, which can hinder the full self-driving capability of the vehicle. 

So, with the above noted in the vehicle manual, as well as in other portions of the vehicle programming, what happens when an accident occurs that is clearly caused by the EV vehicle while it is in self driving mode, and involves the serious injury and/or death of others? In a recent case in California, where the driver faces two counts of vehicle manslaughter for a 2019 incident, the first autopilot case of its kind to see charges, such a question is going to trial. The facts, in summary, are that a Tesla owner was in his vehicle that was in self driving mode, at which point it ran a red light at an intersection and collided with another car, killing both occupants. Investigation revealed the driver was not prepared to take over the control of his car, stating that the car was on autopilot, and he thought that meant it could avoid such an accident. The criminal trial is set to take place mid-2023, along with the civil trial filed against Tesla by the decedents families, alleging defective product including the failure to have an emergency braking system and/or its failure to activate before the crash. These two claims alone, along with other lawsuits filed by accident victims of self-driving technology around the country, could set future precedent regarding owner/driver liability, both criminal and civil, when using autopilot systems. Such precedent could potentially affect the future design and willingness of manufacturers to offer fully autonomous self-driving systems in their vehicles, not to mention drivers’ willingness to utilize such technology.  What is clear is that self-driving technology has a long way to go before it is perfected and completely safe to use, if in fact it will ever be possible to label the technology completely safe. In the meantime, driver beware; read your EV auto manual, and understand your vehicles self-driving limitations, as well as your obligations while utilizing any type of self-driving mode in your vehicle. Failure to do so could result in you being exposed to severe civil and criminal penalties. Tesla, along with other EV manufacturers, have made it very clear that all users have a duty to pay full attention and be ready to take control of their EV instantaneously if their autopilot system fails to recognize a danger or malfunctions and places both its driver and others into a potentially dangerous situation.  Just because it is called – and sold as – “full self-driving technology” does not mean it really is.