Cheryl A. FalveyChahira Solh

The big takeaways from The Autonomous Vehicle Safety Regulation World Congress centered on the importance of a federal scheme for AV regulation and the reality of the states’ interest in traditional issues such as traffic enforcement, product liability, and insurance coverage.  In keeping with those messages, the World Congress kicked off with NHTSA Deputy Administrator and Acting Director, Heidi King, speaking about NHTSA’s goals and interest followed almost immediately with wide participation from the states including California, Michigan, and Pennsylvania, among others.

Deputy Administrator King emphasized NHTSA’s desire to foster an environment of collaboration among all stakeholders, including the states.  Ms. King emphasized that safety remains the top priority at NHTSA.  NHTSA has provided some guidance, and looks forward to hearing from stakeholders about the best way to support and encourage growth in autonomous vehicles.  NHTSA wants to provide a flexible frame work to keep the door open for private sector innovation.  It is necessary to build public trust and confidence in the safety of autonomous vehicles, and that can only accomplished by all stakeholders working together.

NHTSA is working on the next version of AV guidance, having already issues its 2.0 version, with an expected release of 3.0 in 2018.  The guidelines will remain voluntary, but NHTSA is ready to support entities as they try to implement the voluntary guidance.  Working with the states, DOT, OEMs, and other stakeholders, NHTSA hopes to continue to be flexible and allow for rapid changes.  Later in the conference lawyers emphasized the importance of compliance with the guidance in minimizing liability particularly in no-fault states such as Michigan.

Dr. Bernard Soriano, deputy director, California Department of Motor Vehicles, similarly confirmed that California’s overarching interest in regulating AV is the safe operation of vehicles on its roadways.  In summarizing California’s recent October 11, 2017 release of revised regulations, he emphasized that “change happens fast,” and that the state is pleased to now be close to allowing completely driverless testing.  He recognized the federal preemption on the design of the vehicle and its crashworthiness and emphasized the state’s interest in the operation of the vehicles and compliance with state traffic laws.

Dr. Soriano indicated that since AV testing began in California there have been 44 crashes correlated to the number of cars on the road.  He noted that most of them had been minor, low speed events usually involving a car with a driver not anticipating the action of the AV which follows the traffic laws and “drives like a grandmother.”  Indeed, representatives from New York, Pennsylvania and Michigan agreed on the importance of driver training and emphasized the role of the manufacturer and dealer in offering that training and providing incentives for drivers to learn new systems.  As Kara Templeton, director, Bureau of Driver Licensing, Pennsylvania Department of Transportation, pointed out, the state DMVs do not train on cruise control or other features in the car. She also emphasized the need to train non- AV drivers on how to deal with AVs operating with them together on the roadways.

Catherine Curtis, the director of vehicle programs for the American Association of Motor Vehicle Administrators spoke about their work on the Jurisdictional Guidelines for the Safe Testing and Deployment of Highly Automated Vehicles which will propose a framework to ensure consistency among states on the implementation of regulations to encourage innovation and widespread distribution of safety technologies.  Importance of SAE terms as a universal definition for consistency ideas for manufacturers on system use and misuse, criminal activity and crash and incident reporting expected release in late February 2018.

On cybersecurity, the speakers made it clear that security issues cross all IT systems, well beyond cars, and that those issues must be addressed regardless of specific legislative activities at the state level.  The speakers repeatedly emphasized the need to follow best practices and encouraged white hat efforts to identify vulnerabilities and protect against attacks and other actions with malicious intent.

Panelists also recognized the importance of data and the need to define the ownership of black box information as well as images on cameras and other parameters being tracked by the vehicle.  Terrence J. McDonnell, staff sergeant, New York state police, acknowledged that in addition to the data in the vehicle, law enforcement generates its own data at the scene of any accident to emphasize the layers of data at issue in the AV world.

Lawyers predicted significant fights over the production of source code in future product liability cases over potential design defects and posed the question whether juries will be able to understand the complexities of a software design case. Others at the program predicted failure to warn claims would be the first wave of liability cases against manufacturers suggesting the importance of mitigating those risks by the creative use of technology to educate and warn drivers.  Other risk mitigation advice at the conference included:

  • Avoid the temptation to over tout the advantages of the AV technology in promotional activities to avoid misrepresentation claims;
  • Leverage the dealer network with incentives to educate drivers on the use of new technologies;
  • Consider the need to educate non-AV drivers as vehicles with varied amounts of AV functionality hit the roads together;

Many of the speakers over the two days conference agreed that the existing product liability framework can adequately address emerging high tech products.  For that reason, the speakers coalesced around advising businesses to assume the existing risk utility paradigm for product liability will remain and to design emerging products to meet those traditional tests.  That means thinking about whether there are reasonable alternative designs that are technically, economically and practically available and that will reliably enhance overall safety and be accepted by consumers.