Chris Spencer
Chris Spencer

By James A. Bacon

On Oct. 25, 2013, Chris Urmson, a leader of Google’s autonomous car project, proclaimed that legal and regulatory problems posed no major barrier to the commercialization of Self-Driving Cars (SDCs). When accidents did occur, he told attendees of the RoboBusiness conference in Santa Clara, Calif., data collected by the cars would provide an accurate picture of exactly who was responsible. He shared data from a Google car that had been rear-ended by another driver. The annotated map of the car’s surroundings clearly indicated that it had halted smoothly before being struck by the other vehicle.

“We don’t have to rely on eyewitnesses that can’t act be trusted as to what happened—we actually have the data,” Urmson said. “The guy around us wasn’t paying enough attention. The data will set you free.”

The very same day, Toyota settled a case in which an Oklahoma City jury had awarded $3 million for a 2005 incident in which a Camry driven by 76-year-old Jean Bookout had accelerated out of control. Bookout had said she tried to use the foot brake and emergency brake to no avail. Toyota lawyers had argued that she must have hit the gas instead. At issue was the performance of an electronic throttle control system that replaced mechanical links between the accelerator pedal and the throttle in older models. Siding with Bookout, the jury bought the story that the electronic throttle was flawed.

Google may have data on its side but accident victims sometimes have judges and juries on their side. Toyota had won all previous unintended-acceleration cases and an exhaustive study by the National Highway Traffic Safety Administration could find no flaw in the brake’s computer code, but the judge instructed the Oklahoma City jury that it could find a product defective even if no defect could be identified.

“It opened the floodgates,” says Chris Spencer, a Richmond, Va., attorney who has represented automobile manufacturers in hundreds of cases, including dozens that have gone to trial and reached a jury verdict. “All a lawyer has to do is get his client to say, ‘I did nothing wrong but something went wrong – it must have been the vehicle’s fault.’”

(Cross posted from the Datamorphosis blog.)

Few would dispute that SDCs are safer overall than human drivers. Few would contradict the view that accidents, injuries and fatalities will decline as SDCs comprise an increasing share of the automobiles on the road. But the very thing that makes cars safer – the increasing use of software-controlled electronics – may make car makers more vulnerable to lawsuits. Without significant updates to tort law, the inability of auto manufacturers to disprove a negative – that their software is not flawed – could hinder the adoption of technology that could save thousands of lives every year.

There are roughly six million traffic accidents every year in the United States. Most of the time, humans are at fault. Sometimes mechanical failure or road conditions are to blame. Before the advent of electronic parts, explains Spencer, if the car failed, the failure usually was visible in the form of a blown tire, worn brake or some other damaged part.

But car mechanical systems are giving way to electronic systems. Electronic sensors flash a light if an engine part is nearing failure. Antilock brakes take over when the brakes are about to lock up. The steering wheel, once connected to the axle by a steering column, now guides the car by means of electric signals. Cars use cameras and lasers to survey the environment around them; road-recognition software tells them if the driver is drifting over a lane and sends a warning. Soon, cars will be communicating with one another, sensing immediately when vehicles ahead are slowing, and slowing instantly in response.

For the most part, that’s a positive trend. Electronics parts don’t get distracted, they don’t get tired, and they see as well on a rainy day as a bright sunny day. ”Cars can sense things faster and better than you can,” says Spencer. “They can respond faster and better than you can. They have all these wonderful features. The general public sees them as a great leap forward.” The problem is, he adds, “If you build it, they will sue.”

The electronics systems in today’s cars are enormously complex. “The most modern jet fighter in the U.S. arsenal, the F35, is thought to have 18 million lines of code,” says Spencer. “A modern vehicle has 100 million lines of code when you include the infotainment.”

Writing software is an art. One programmer can’t easily tell what another programmer has done. If a car malfunctions, it is exceedingly difficult to find a flaw in the code – and it’s almost impossible to rule out the possibility that a hard-to-identify defect lurks in the code.

There is a rich vein in the popular imagination of renegade computers and demon-possessed machines. “Autonomous machines scare the hell out of us,” Spencer says. Factor in the experience that most Americans have had with computers – unexplained crashes, disappearing files, degrading computer performance, bizarre error messages, viruses and malware, frequent software updates and patches – and it’s not surprising that some jurors do not regard software code as infallible.

Compounding the problem for defense attorneys is the fact that witnesses are not reliable. “Any trial lawyer will tell you that if you put a person on each corner of an intersection and had a crash, you’d get four different stories, six if you counted the drivers.” Spencer quips. “People see, hear and describe the same things very differently. Try to get an accurate statement from a witness of a crash that unfolded in milliseconds” – it’s almost impossible. Yet jurors may believe a little old lady who swears she didn’t push the accelerator when she meant to push the brake.

The Oklahoma case was settled so it can’t be overturned, and it does not create a binding precedent. But lawyers do look to history to guide them, suggests Spencer, and the case will encourage more lawsuits. While the tort system is good at providing redress in individual cases, it also can stifle and punish innovation. Autonomous cars and SDCs have the potential to save literally tens of thousands of lives.

Spencer offers no specifics on how the tort system should be reformed, but Don Howard, a Notre Dame philosophy professor, and Mark P. Mills, a senior fellow at the Manhattan Institute, do. In a recent Wall Street Journal column, they wrote:

The self-driving-car solution is clear. Congress should pre-empt [the National Highway Traffic Safety Administration] and the trial lawyers and pass a National Autonomous Vehicle Injury Act. The Fords and Nissans and Googles and Qualcoms should voluntarily create an Autonomous Vehicle Event Reporting System. And industry players should also create a National Autonomous Vehicle Compensation System.

This advance in automotive safety is too important to leave to the vagaries of the tort system, Spencer argues. “You can’t stop driverless cars. They can do too much good.”

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8 responses to “The Demon in the Machine”

  1. Not sure we need to do anything about the tort system – it just a right wing canard that refuses to go away.

    computer code is subject to error.. yes.. but recording of data does not lie.

    take airline black boxes.(or trains or ships and now cars). does anyone question the data captured? When the black box says the plane did this and did that – do we think the recorded data is wrong? not usually.. we usually take it as gospel.

    ALL cars nowdays- both autonomous and human-operated also have black boxes that record data… and while it’s true that maybe we were not capturing brake and accelerator pedal pressure data – you can bet Toyota is now.

    most auto accidents now days download the data from the black box… it’s going to tell the truth no matter the driver or eyewitnesses.

    consider also – traffic signals. have you every considered that they too are programmed by humans and yes.. once in a great while one of them goes haywire but how often do you hear that the signal went bananas? not very often. How many times have you go through a green light without ever worrying about a “coding” error that would give both you and the other drivers green? we trust them right?

    keep in mind also, that cars are now capable of multiple – cheap tiny cameras – like video data recorders that can capture the last few minutes before a crash. Put these cameras on 4 points or a 360 on top of the car, along with black boxes that capture data .. combine that with cameras on roads themselves and see how many cases are solved before they ever get to trial.

    I think we’re just looking for excuses to blame tort law again, instead of dealing with the real issues… there is no reason why cars cannot be fully equipped to capture data – and it will be far cheaper than lawsuits and tort law changes.

    we don’t need changes to tort law. technology can now easily capture the truth and my bet is that autonomous cars will be fully outfitted with data sensors and cameras.

    you don’t need no stinking eye-witnesses or tort law excuses no more.. you got big data and big video out the wazoo..

    the right should get off the tort law canard…

    1. One of the biggest causes of accidents has to be a lack of attention by drivers. Look for a car that is not operating in the same manner and speed as the rest of the traffic and odds are you will see the driver talking on his/her cell phone. And, we still have maniacs texting.

      The tort process is still out of balance. Despite having a state law requiring all occupants of a vehicle to wear seatbelts, I recall that a number of states prohibit the introduction of evidence that a driver or passenger was not belted.

      1. oh I totally agree but data recorders are greatly reducing frivolous motor vehicle lawsuits … … autonomous vehicles utilizing data recorders and video cameras are going to catch the frauds.

  2. Peter Galuszka Avatar
    Peter Galuszka

    Hard to follow

    1. easy translation – innovation, specifically autonomous vehicles, are being stifled by wrongheaded govt tort laws.

      bad bad government laws..

  3. Breckinridge Avatar

    One jury in Oklahoma City does not a precedent make. That decision looks pretty ripe for appeal, assuming the evidence really is that thin.

    General Motors on the other hand is going be paying out big time.

  4. mshapiro Avatar

    You really can’t compare the 18 million lines of code in an F35 to the 100 million lines of code in a car. Yes it takes 18 million lines of code to operate the plane in a vacuum, but those 18 million lines depend on hundreds of millions more lines of code to operate within the network that is the US Military.

    A more accurate comparison would be how many lines of code it would take to allow a single car with that 100 million lines of code to run as part of integrated autonomous self driving car network.

  5. re: millions of lines of code and tort law…we’re sort of acting like there have not already been airliners, LASIK, CAT and MRI imaging machines, etc.. and as far as I know few if any cases where the “code” has been obtained and tested by the aggrieved party and then proven to be “defective”.

    I think it’s technically and legally possible to do it but you’d first have to convince the judge that there was a good chance the proprietary code was involved then you’d have to hire some pretty heavily credentialed software developers who could then get up in front of a judge an jury and give them a quick tutorial in “C” or “forth” or some other computer language and convince them that some particular line of code absolutely without a doubt led directly to some catastrophic failure.

    not saying it can’t happen.. but it’s a tough gig…

    On the other hand.. if you take a look at the new drugs and medical devices on the market – it seems to be open season… they even have a phone number called 1-800-bad-drug… and all they really need to do if convince a judge or jury that someone was harmed after they took the drug… ..

    there is a balance here.. without the tort laws – the drug manufacturers would run wild… and our only defense would be that government bureaucracy known as the FDA which many Conservatives and libertarian types have decried as government snooping and interference and in a real free market – the drug companies are free to make drugs and people are free to make up their own minds if those drugs are good or bad.. except of course for the maimed and dead but that’s a mere detail to those with libertarian/conservative sympathies!

    I think the innovators best defense is cameras and sensors that grab the data… then wait for the lawsuit and bring on the data to show how false the claims are.

    not even expert programmers can figure out some kinds of code because it’s more than code.. it’s the interpreter and the hardware also. One program can work fine with one kind of software architecture and operating system and flop on another. It can an expert months.. to get to the bottom of it and it can years for someone who thinks they are an expert but are not.

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