Fault-y Reasoning

Abstract

Intelligent transportation systems (ITS) hold great promise to improve personal and commercial travel, but intelligently linking vehicles and travelers via increasingly interconnected real-time data systems creates a host of new and largely untested liability questions when things go wrong. In this article, we examine current policies, laws, and administrative codes guiding ITS liability by reviewing the scholarly literature and case law in the United States. We find (a) a patchwork of industry self-regulation, (b) a modicum of tort case law precedent that varies substantially across states, (c) many unresolved questions, and (d) little prospect of guiding federal legislation on the horizon. While the liability questions raised by driverless cars have received much attention, we conclude that ITS liability standards are likely to be settled incrementally in the near term on decidedly narrow grounds via case law on navigation and collision-avoidance systems, long before fully automated vehicles are deployed.

Keywords

intelligent transportation systems (ITS)automated vehicles liability torts

Introduction

Intelligent transportation systems (ITS) refer to a diverse family of technological applications that aim to increase the efficiency and effectiveness of both personal and commercial travel. Freeway performance monitoring, real-time traffic signal optimization, automated toll collection, delay-sensitive navigation systems, and real-time public transit arrival and departure information are just a few of the many dozens of ITS technologies already assisting travelers. Many new vehicles come equipped with accident warnings and even limited automated braking and steering capability, systems that may soon be connected to other vehicles and traffic control infrastructure through wireless communications devices. ITS offers society many potential benefits from reducing traffic congestion, to improving safety, to lowering fuel consumption (Kalra, Anderson, & Wachs, 2009). In addition, the increasingly prodigious production and consumption of data on the movement of vehicles and mobile communication devices have proved to be a boon to transportation research.

The growth of ITS, however, has quickly outpaced the evolution of standards, practices, rules, and laws governing responsibility for harms caused by the use or misuse of this emerging technology. Some commentators raise concerns that uncertainty over legal issues may be stifling innovation and delaying the development and deployment of socially useful ITS technologies (see, for example, Anderson et al., 2014; Cheon, 2002; Kalra et al., 2009; Wagner, Baker, Goodin, & Maddox, 2014). Others are more measured, suggesting that the legal situation is unclear and calling for more research into liability questions that may affect future advancements in the industry (Beiker, 2012; Khan, Bacchus, & Erwin, 2012).

While ITS research has been ongoing for decades, breathless media coverage of the self-driving “Google Car” raised public awareness of ITS and where they might be headed to new levels. Although automated vehicles are still in their infancy, partially automated vehicle technologies are increasingly common, and when something inevitably goes wrong, courts (and perhaps legislatures) will have the task of sorting out who may be liable, and to what degree (Marchant & Lindor, 2012). Collisions that would historically be blamed on drivers could become the joint responsibility of a host of private and governmental ITS actors. ITS suppliers’ willingness to innovate and deploy systems in the emerging connected vehicle environment will depend on whether they can sell consumers on the (almost certain, if not always perceived) idea that such systems are safer than current human-centered systems.

Such deployment hurdles are common to any novel technology, but the problem may be especially acute in the case of ITS, which is quickly evolving into a system of highly interrelated components supplied by multiple parties that must work together seamlessly and securely to function effectively, and where automotive control failures frequently lead to injuries and death.¹ The path ahead will most likely reflect the gradual introduction of greater vehicle automation (Fishelson, Freckleton, & Heaslip, 2011) and questions of legal responsibility will most probably arise in that context of partial adoption (Denaro, Zmud, Shladover, Smith, & Lappin, 2014).

Accordingly, this article examines sources of potential liability for ITS providers, the current status of federal and state laws governing legal liability for vehicle operation and information systems, and their implications for ITS technologies. We conclude with a discussion of the merits and drawbacks of various potential liability frameworks.

U.S. Government Involvement in ITS

The public U.S. ITS program began with the 1991 Intelligent Vehicle Highways Systems Act which allocated US$250 million annually to ITS research and testing (Dingle, 1995), and was later extended by the 1998 Intelligent Transportation Systems Act (Benson, 2005). The program focuses on the integration of intelligent vehicles and infrastructure, and supports the overall advancement of ITS through investments in major research initiatives, exploratory studies, and a deployment support program including technology transfer and training to advance transportation safety, mobility, and environmental sustainability (Intelligent Transportation Systems Joint Program Office, 2014). Congress currently authorizes roughly US$100 million yearly for ITS research and development (Harding et al., 2014). The Federal Highway Administration (FHWA) estimates that approximately 3% to 5%, or between US$1.6 to US$2.6 billion, of federal transportation funding for 2010 has been spent on projects that incorporate ITS technologies (Wise, 2012).

The initial Automated Highway System program called for developing a network of roadways with sensors capable of automatically guiding vehicles (Congress, 1994). The high costs of this program, combined with technological advances and governmental liability concerns (Kalra et al., 2009; Khasnabis, Ellis, & Baig, 1997; U.S. General Accounting Office, 1997), led to a shift in strategy to a more vehicle safety-focused approach (Little, 1997). This was followed in 2003 by a federal effort to foster cooperation among the U.S. Department of Transportation (DOT), state departments of transportation, and the auto industry to address technological interoperability for ITS. The emerging ITS network was to support communication between vehicles for crash avoidance and roadside infrastructure to provide information to vehicles (Kandarpa et al., 2009). In 2009, the U.S. DOT sought to accelerate development of in-vehicle technology under the renamed IntelliDrive program (Cronin, 2010; Research and Innovative Technology Administration, 2010), which continues under the current Connected Vehicle Technology research program (Intelligent Transportation Systems Joint Program Office, 2015b) as a centerpiece of the Department’s 2012 ITS Strategic Research Plan. This plan acknowledges the many legal issues surrounding ITS and calls for an analysis of

. . . stakeholders’ potential legal risks and liability for purposes of providing recommendations about whether the Federal government should consider a risk-sharing regime; assessment of intellectual property/data ownership issues that might hinder adoption of connected vehicle technologies; and, identification of legal parameters and considerations relative to governance, funding and other aspects of implementation (Grace, Oxley, Sloan, Tallon, & Thornton, 2012, p. 100).²

In August 2014, the National Highway Traffic Safety Administration (NHTSA, 2014a) of the U.S. DOT took the first step in requiring Vehicle-to-Vehicle (V2V) communication capability on new vehicles. Its proposal would support new warning applications like Intersection Movement Assist (IMA) and Left Turn Assist (LTA) that provide safety benefits only if a significant portion of the vehicle fleet is equipped with V2V. This technology is part of a larger architecture encompassing Vehicle-to-Infrastructure (V2I) communication to enable exchange of critical safety and operational data between vehicles and infrastructure. While the agency has acknowledged the importance of liability issues to automotive manufacturers and others in this effort (Harding et al., 2014),³ for now it has opted not to call for supporting legislation, though that could change as the rulemaking process moves forward.

The federal ITS program is administered in partnership with the states, which manage smaller scale ITS programs. In a survey of state programs, Fries, Gahrooei, Chowdhury, and Conway (2012) report that the states allow for experimentation with technologies and implementation strategies, and provided valuable lessons for broader, national ITS deployment, but found little consistency in the handling of liability issues. Some states have permitted testing of automated cars on public streets, generally limiting liability for original equipment manufacturers of converted vehicles, but otherwise failing to address liability issues for ITS providers (Denaro et al., 2014). As transportation necessarily involves movement from place to place, and automation will rely on interconnecting vehicles with other vehicles and infrastructure, the differing legal regimes across the country could pose potential challenges to a cohesive framework for ITS deployment. Unfortunately, the legal literature on ITS liability has largely ignored the issue of divergent and conflicting state laws. Although these concerns may not be unique to ITS, they may be complicated by the need for uniform legal standards to enable advanced ITS systems to operate across jurisdictional borders (Graham, 2012; Kalra et al., 2009; Shladover, 2014).

Current ITS Legal Landscape and Concerns

Although automated vehicles offer the promise of improved safety, numerous commenters have raised concerns that the burden of liability may shift from drivers to manufacturers (Ayers, 1994; Colonna, 2012; Marchant & Lindor, 2012; Wagner et al., 2014) or that the legal system is unprepared to deal with liability with respect to automated vehicles (Duffy & Hopkins, 2013; Gurney, 2013). Much of the literature in this arena centers on the “self-driving car” of the future, but some scholars have sought to examine liability issues raised by the many incremental steps on the path toward vehicle automation (such as GPS navigation, vehicle reverse-gear radar systems, etc.; Gurney, 2013; Kalra et al., 2009; Marchant & Lindor, 2012). While the fanciful appeal of the driverless car is undeniable, their widespread deployment remains many years away (Shladover, 2014). Meanwhile, the increasing integration of information and robotic technology into existing conventional vehicles, suggests that ultimately the evolution of liability schema for near-term ITS technologies will depend heavily on the outcome of issues that arise out of the intermediate, partially automated systems being developed and used today.

Examples of potential liability include harms caused by (a) incorrect information dissemination or failure to notify vehicles or their drivers of hazardous conditions, (b) faulty manufacturing or system design, and (c) failure to monitor and/or update systems as needed. The dangers from technology failure range from incorrect processing in tolling scenarios that lead to false bills and penalties, which is relatively innocuous though administratively burdensome (Parliamentary Office of Science and Technology, 2002), to serious errors that could result in injury and even death.

Faulty Information—Who Do You Trust?

The popularity of GPS-based mapping and way-finding systems like Garmin and TomTom has raised questions about whether navigation system suppliers may be responsible for accidents caused by users relying on faulty or incomplete information (Weaver, 2012). While there is a dearth of case law on this topic, there has been quite a bit of anecdotal evidence of the problem (Saulen, 2009; Woodard, 2009); the most frequently cited (if mostly apocryphal) examples involve people driving cars into lakes because the driver claimed their GPS systems directed them to do so (Kalra et al., 2009; Saulen, 2009). While mistakes in ordinary highway maps should rarely if ever create any legal liability, some commenters have suggested treating GPS devices as more analogous to nautical and aeronautic navigation charts that guide ships and planes, whose suppliers are held to special duties of accuracy out of concern for public safety (Saulen, 2009; Woodard, 2009). This line of reasoning may provide some direction for more advanced, real-time automobile guidance systems that assist drivers by monitoring the outside driving environment for potential hazards—such as adaptive cruise control, rearview cameras, proximity (blind spot) and lane departure warning systems, front and side collision warning systems, and infrared and thermal radiation night vision systems—but does not really address the interplay among an increasingly complex combination of actors and factors involved in ITS technology.⁴

The NHTSA’s current position is that inasmuch as the technology it proposes mandating in new vehicles supports warning not control systems it should not generate any additional liability exposure for the automotive industry (Harding et al., 2014). The agency’s conclusion is that drivers, not manufacturers, will remain primarily responsible for their failure to prevent crashes as it is up to drivers to decide how to use the information provided. While this position is consistent with the “mapping” cases noted above, it is strongly disputed by the Alliance of Automobile Manufacturers, which has expressed concerns over the NHTSA’s proposed V2V and cybersecurity regulations. The Alliance maintains that V2V safety warnings are not the same as those generated solely by a driver’s own vehicle as

V2x [vehicle-to-other devices] safety warnings are interdependent on information coming into the host vehicle from other vehicles, roadside equipment, or portable devices. After any given device is certified and is in use, the host vehicle’s manufacturer has no control over the quality, durability, or maintenance status of those external sources of information—yet the V2x safety warning generated by the host vehicles may be partially or completely dependent on these external sources. (Alliance of Automobile Manufacturers, 2014, p. 8)

The NHTSA does note that should it contemplate requiring safety control technologies in the future, it will consider the appropriateness of advancing liability limiting measures “protective of industry and/or other stakeholders” (Harding et al., 2014, p. 208). That may well become critical as the U.S. DOT pursues its Automated Vehicles research program that aims to accelerate development and deployment of at least partially automated vehicles by the end of the decade (Intelligent Transportation Systems Joint Program Office, 2015a).

On the government side, the availability of advanced road sensors for traffic monitoring and informational purposes may also raise liability issues. Some public officials are concerned that possessing ITS-derived information creates an actionable duty for them to use those data for safety purposes. A recent report to the National Council of State Legislatures (Rall, 2010) addressed this concern in the context of an ITS system that monitored weather conditions and communicated the information to drivers. On one hand, automated systems such as these may help governments meet their legally required standards of care for road safety, but they may simultaneously—and substantially—raise the standard of care required (Ayers, 1994; Rall, 2010). Understandably, unresolved questions like these could have a chilling effect on local government deployment of ITS technologies.

Faulty System Design—Who Is in Charge?

As ITS systems become actively involved in controlling vehicle movement, the more likely it is that accidents will be blamed on faulty hardware or software design rather than driver error. Examples of partial-control systems include advanced driver assistance systems that actually anticipate dangerous situations and can take appropriate actions, like adaptive cruise control, which uses onboard sensors to maintain safe following distances, lane keeping systems that automatically steer drifting vehicles back into their lane, as well as automatic collision mitigation braking systems that either pre-charge the brakes if a collision is imminent (to increase driver braking effectiveness) or actually cut engine power and apply braking to avoid or lessen the severity of a crash (Laukkonen, 2015). More advanced systems such as the IMA and LTA systems mentioned above, as well as Cooperative Advanced Cruise Control, rely on V2V and V2I communications (Shladover, 2014).

Despite their promise to improve driving safety generally, systems that supply specific warnings that audibly and/or visually prompt a driver response or systems where vehicles independently initiate some form of braking or steering maneuver may actually increase the possibility of collisions in some situations, thereby potentially exposing ITS providers to liability. For instance, these warning or vehicle response systems could fail occasionally based on incorrect or incomplete information (van der Heijden & van Wees, 2001). Alternatively, drivers could become overwhelmed or distracted by too much information (Little, 1997) or be induced to take dangerous actions based on faulty or confusing warnings (van der Heijden & van Wees, 2001). Research on automation shows that people can become easily bored or distracted without something requiring their concentration; such partial-control drivers may miss cues or be unaware of their vehicle’s operations and thus be slow to respond when called upon to react to dangerous situations (Cummings & Ryan, 2014). Research has shown that drivers take significantly longer to respond to emergencies when driving is automated rather than manual. Work is continuing on interfaces for detecting driver engagement in these partial automation situations and on the drivers’ ability to regain vehicle control (Shladover, 2012).

The enhanced capabilities of ITS could actually incentivize drivers to rely more on the technology and less on their own judgment if they come to expect their vehicles to automatically react to potential dangers; such reliance may lead drivers to be less attentive in monitoring driving conditions and less prepared to take control of their vehicles in an emergency. To what degree should ITS system manufacturers take these human behavioral responses into account? Should they anticipate eroding awareness on the part of drivers? Should they monitor driver attentiveness and intervene to keep drivers engaged? Should other drivers be notified that another vehicle on the road is operating in a semi-automated mode?

Until the debut of reliable fully automated vehicles, humans will have an important, albeit diminishing, role in monitoring the performance of ITS-enabled vehicles (Anderson et al., 2014).⁵ Thus, while ITS may ultimately reduce crashes overall, ITS providers could experience higher legal and financial risk in the short term as drivers share (or are increasingly removed from) decision-making processes (Kalra et al., 2009; Marchant & Lindor, 2012).

Failure to Update Systems—Who Is Keeping Watch?

As ITS technology evolves, providers may be required to supply continuous software fixes and updates so long as the product remains in service, as is currently done absent government regulation with many computer and mobile device operating systems, programs, and applications (Smith, 2013). While noting that ITS technologies enabling real-time communication between the device and manufacturer can provide notice of potential problems and thus help minimize subsequent liability claims, Smith (2013) also points out that this capacity may impose a continuing duty on manufacturers to monitor (a) the use of their products and (b) perhaps the user as well. Such monitoring may well improve system functioning and safety, but may also introduce more complexity and opportunities for errors over which ITS component and system manufacturers and suppliers may have little control, especially if some services are provided by a third party, or if consumers or hackers gain access to the system (Calo, 2011).⁶

In sum, ITS providers—private and public—may be liable for (a) failing to supply information that travelers come to expect, (b) supplying incorrect or misleading information, (c) failing to properly transfer vehicle control between drivers and the ITS, (d) increased vehicle and roadway complexity, (e) increased component reliability needed for highly automated systems, and even (f) the increased risk of ITS-enabled highway capacity enhancements (Ayers, 1994).⁷ The liability of original equipment manufacturers (so-called “OEMs”) vis-à-vis after-market suppliers of ITS systems or system add-ons (Little, 1997), consumer modifications to systems, or those that rely on third parties to supply real-time information, cybersecurity, or system updates is uncertain as well.

Law and Technological Innovation

That there has been little ITS regulatory action to date at either the state or federal level is hardly surprising as technologies commonly develop faster than their associated legal and regulatory systems, and ITS is no exception (Marchant & Lindor, 2012). The slow pace of regulatory guidance over liability issues stemming from developing ITS technologies is not unique, and there is a sizable body of research focusing on developing industries and corresponding regulatory law (Porter & Ronit, 2006). Graham (2012) surveys the history of automobile tort litigation and notes that early litigation surrounding a technology often relies on theories of liability developed for existing technologies, with mixed results. He notes that it takes considerable time for both litigants and the courts to shift prevailing views on who bears liability, citing as an example that courts have only gradually come to find the auto industry partially at fault for the increased risk of electric vehicle versus pedestrian accidents because the new vehicles are so quiet.

Given the rapid and uncertain path of technological change, regulatory regimes rarely emerge before the technologies have matured and become established (Zimmer, 2005). As such, technology-specific legislation almost never pre-figures the technology itself (Hong, Cregger, & Wallace, 2012). For example, the Internet grew and developed with little if any regulation prior to widespread use (Graham, 2012). When it does emerge, regulation typically follows both the establishment of standard business models (Zimmer, 2005) and industry self-regulation, which often forms the basis of public regulation (Douma & Aue, 2011). Self-regulation is common in fast growing and changing industries, like technology industries, to cope with collective action problems, encourage project adoption (West & Lu, 2009), and to stave off and/or steer government regulation (Cottrill, 2011; Pethtel, Phillips, & Hetherington, 2011).

How Legal Uncertainty Could Affect ITS Deployment

There are currently no comprehensive laws or regulations in the United States addressing ITS technologies, liability or otherwise. Instead, we have a piecemeal system of legal guidance in which ITS-related liability questions are decided by varying state tort and contract laws (Glancy, 2009).⁸ To date, the authors are not aware of any major ITS-related litigation resulting in a judgment against a manufacturer,⁹ but a number of legal and ITS scholars have expressed concern that ITS providers could face increasing liability for collisions contributed to or caused by faulty or defective technology. Kalra et al. (2009) report in their study of the issue that manufacturers “repeatedly voiced concerns about tort liability for damages that may result from the use of this technology” (p. 45). Similarly, Wagner et al. (2014) survey automated vehicle industry representatives, including OEMs, and find that “almost all respondents felt that liability was one of the largest issues facing the industry” and that many fear that “liability will slow the pace at which OEMs develop and sell their vehicles” (p. 28). Khan et al. (2012) conclude that legal systems are not presently able to answer how liability should be apportioned among drivers and vehicle manufacturers and that the transition from limited to more fully automated vehicles will require governments to provide the legal framework for resolving liability questions.¹⁰

Such fears notwithstanding, the effect of liability on ITS development remains uncertain (Graham, 2012). Some observers fear that substantial judgments may exceed ITS manufacturers’ insurance coverage and/or financial reserves, and others suggest that the mere existence of liability uncertainty may make some firms hesitant to develop ITS technologies (Anderson et al., 2014; Colonna, 2012; Duffy & Hopkins, 2013; Garza, 2012; Goodrich, 2013; Kalra et al., 2009; Khasnabis et al., 1997; Marchant & Lindor, 2012; Saulen, 2009; van der Heijden & van Wees, 2001). Marchant and Lindor (2012) caution that early high-profile automated vehicle safety lawsuits could place large financial burdens on manufacturers, perhaps large enough to dissuade further research and development. Parchomovsky and Stein (2008) argue that courts’ reliance on custom and existing technologies as benchmarks for liability in tort law will chill ITS innovation by discouraging companies from investing in research and development. Thus, if manufacturers perceive the risk of very high-payout lawsuits as outweighing the potential financial gains from ITS deployment, the result may be an undersupply of useful (and perhaps safety-enhancing) ITS technologies (Ayers, 1994).

Several commentators have noted that liability concerns are more acute in the United States due to the comparatively high financial exposure in legal actions (Garza, 2012; van der Heijden & van Wees, 2001),¹¹ which has both deterred foreign entrants (Loh, 2008) and discouraged some manufacturers from including new ITS-related features in their models sold in the United States (Garza, 2012). For example, Volkswagen offered Lane Assist, Park Assist, and Adaptive Cruise Control on its 2009 to 2012 models outside of the United States, but did not offer these features on models sold in the United States, citing liability concerns as the reason (Monticello, 2008).

The apportionment of significant liability to ITS providers for crashes would increase costs and, given their comparatively deep pockets vis-à-vis individually insured drivers, this may increase overall safety and insurance costs even if ITS reduces (as expected) the overall incidence of collisions, injuries, and deaths. These higher costs, in turn, increase vehicle costs, which may slow fleet turnover, especially if drivers undervalue the safety benefits of ITS technologies (Ayers, 1994).

While there is no shortage of observers concerned about the chilling effects of uncertain liability on ITS advances and deployment, others are more sanguine, arguing that such concerns are overblown and that the current legal system is up to the task of assessing and resolving questions of liability (Garza, 2012; Villasenor, 2014). Woodard (2009) suggests that holding GPS-enabled device makers responsible for any catastrophic outcomes from system errors or glitches will motivate them to increase product reliability. Graham (2012) suggests that uncertainty over the responsibility of ITS manufacturers may actually discourage lawsuits against them, at least early on.

Furthermore, some argue that ITS technologies that record detailed information about a vehicle’s condition and operation prior to an incident may actually improve the tort system by informing determinations of fault and liability (Phillips & Kohm, 2011). Existing examples of this include traffic cameras that film crashes and vehicle “black boxes” that record speed and other vehicle operating data on new vehicles (Steinfeld, 2010).

Villasenor (2014) likewise argues that existing legal rules and procedures are capable of handling issues relating to intelligent vehicles while acknowledging that they “will complicate the already complicated entanglements between insurance providers, plaintiffs, driver/owners named as defendants, and manufacturers” (p. 15). It may well be that courts will eventually sort out responsibility among various parties in a fair and consistent manner, but in the meantime uncertainty abounds, with corresponding uncertain effects on the development and deployment of ITS.

Potential Responses to ITS Liability Concerns

What are some possible paths for the development of liability standards for ITS technologies? As noted above, one is to let the courts address the question in an “ad hoc” manner, largely by applying existing tort principles to address increasingly complex, multi-party ITS systems. Calo (2011) notes several problems with this approach, including costly delays to innovation, outsized sympathy for early plaintiffs, and increased foreign competition from ITS firms in other countries where higher bars to litigation provide them with a head start in system development. Others have suggested court-based tort reforms ranging widely from treating ITS manufacturers (especially vehicle makers) as common carriers subject to the highest duty of care (LeValley, 2013), to absolving them of any liability and holding drivers strictly liable for any injuries caused by their intelligent vehicles on the theory they are engaging in a type of ultra-hazardous activity (Anderson et al., 2014; Duffy & Hopkins, 2013).

Few observers argue that ITS development will halt entirely unless and until the courts or legislatures resolve major, unanswered liability questions. Clearly, ITS technologies are being brought to market and their obvious convenience and safety advantages will continue to spur consumer interest. Still, manufacturers, insurers, and consumers have vested interests in addressing these issues consistently and conclusively, so we are likely to see increased pressure for new legal and regulatory frameworks in advance of the full development and deployment of major new ITS technologies.

These efforts could take many forms. First, we could see some comprehensive federal legislation to protect both consumers and manufacturers. Second, a patchwork of state regulations may emerge reflecting varying attitudes toward the benefits and costs of ITS. Third, there could be a focus on shielding state and local governments who operate and maintain road systems from liability. Fourth, we could see various state tort law reforms enacted to address ITS-related issues as described above. And finally, industry promulgated self-regulation rules and standards may appear in an effort to discourage some types of liability claims. We summarize the pros and cons of these approaches in Table 1 and discuss each in turn below.

Table 1.

An ITS Liability Evaluation Framework.

Legal Regime	Benefits	Drawbacks
Comprehensive legislation	Prevents inconsistent and conflicting state regulations Reduces uncertainty that may hamper development and implementation of ITS technologies Can address all relevant parties	Politically cumbersome May reduce incentives for safety improvements by setting a baseline Further ITS development would be required before enduring safety standards can be crafted
Municipal immunity	Reduces uncertainty that may hamper development and implementation of ITS technologies	Ignores redress for ITS-resultant injuries Does not extend protection to manufacturers
Tort law	Fear of litigation may create incentives for an emphasis on safety in manufacturing and ITS implementation	Inconsistent and conflicting state regulations Increased uncertainty
Contractual protections	Can easily be used in lieu of legislation or well-developed case law	Uncertain strength of protection Only protects manufacturers/service providers

Note. ITS = Intelligent transportation systems.

Comprehensive Regulatory Legislation

Scholars are divided over the larger philosophical question of government intervention into the private development and deployment of ITS. Villasenor (2014) maintains that federal involvement is generally unwarranted as vehicle manufacturing defects have always been the province of state courts applying state tort remedies. He does suggest that federal regulations including liability provisions for commercial ITS vehicles that routinely cross state lines may be warranted. Others are not so sanguine, arguing that the mere possibility of 51 separate liability regimes will itself discourage ITS providers from entering markets that cross jurisdictional lines (Anderson et al., 2014). While manufacturers that distribute products widely currently face the prospect of multiple tort regimes, ITS may require more uniform regulation and standards as these systems often have to connect with infrastructure and service providers across multiple jurisdictions to function (Bassinger, 1998).¹²

Several commentators have suggested that ITS providers should be given special protection along the lines of some other important industries on the grounds that the overall social benefits outweigh the short-term risks. For instance, the Federal Protection of Lawful Commerce in Arms Act of 2005 prohibits certain civil actions against gun makers, and, in 1994, Congress passed the General Aviation Revitalization Act (GARA) which shielded small plane manufacturers from certain liability claims where the aircraft involved is more than 18 years old (Smith, 2014). A similar rule for ITS could protect manufacturers from liability due to continuing use of outmoded technology. Goodrich (2013) urges the federal government to provide legal immunity for automated vehicle manufacturers similar to that provided for vaccine producers or to at least adopt uniform regulations for automated vehicles. Such approaches could protect manufacturers by blocking lawsuits or by capping compensatory and punitive damages (Kalra et al., 2009; Marchant & Lindor, 2012). At a minimum, legislation could include statutory liability limits for consequential and/or punitive damages.¹³

The federal government could adopt national standards for ITS under the Federal Motor Vehicle Safety Act, as was done in the case of seat belts and air bags. Those standards could explicitly “preempt” inconsistent and conflicting state regulations (Harding et al., 2014, pp. 211-212, see para. X. D.; Marchant & Lindor, 2012). Even absent Congressional action, courts could rule that regulations such as the NHTSA’s on V2V communication devices implicitly restrict inconsistent state tort law claims¹⁴ to establish guidelines for courts in setting the appropriate standard of care for ITS providers.

One substantial downside to federal regulation, or regulation at any level for that matter, is the possibility that it reduces incentives for incremental improvements in safety so long as the baseline requirements are met (Marchant & Lindor, 2012). As noted earlier, fear of litigation in lieu of guiding legislation is viewed by some observers as healthy for the industry, by creating powerful safety incentives in the manufacturing and deployment of ITS (Bagby & Gittings, 1999).

Before promulgating any regulations, though, regulators would need to be certain that the safety benefits of the regulation outweigh any potential costs limiting recovery of damages by injured parties. As Kalra et al. (2009) point out, manufacturers will need to be highly confident in the operation of the technology or secure that their liability exposure will be limited by accepting government mandates. Automobile manufacturers resisted mandatory air bags over just these concerns, and indeed their safety benefits were overestimated early on and the risks to some passengers (children and shorter or lighter adults, for instance) were poorly understood (Wetmore, 2004).

While it is too soon to predict whether Congress will eventually act on comprehensive national ITS regulations, we can safely assume that those involved in debating such regulations, both manufacturers and consumers, will push to include liability issues as part of that process, as evidenced by responses to the NHTSA’s proposed V2V standards (Harding et al., 2014, pp. 208-211, see para. X. B and C). And given the potential for substantial harm from roadway collisions, possibly between multiple automated and non-automated vehicles, insurers and consumer advocates can also be expected to seek assurances that crash victims will have access to effective legal means of redress.

As a supplement to regulation, educating the public about the capabilities and limitations of new ITS technologies could lead to realistic consumer expectations and obviate some liability issues. Driver training courses could include instruction on operating increasingly automated vehicles and state departments of motor vehicles might eventually test driver license applicants’ skills in this regard. Colonna (2012) suggests that procedures be put in place to certify both new ITS technologies and their owners and operators.

Governmental Immunity

Early writing on the legal implications of ITS generally dealt with governmental liability (Ayers, 1994; Cheon, 2002; Khasnabis et al., 1997; Syverud, 1992, 1993). That waned as the U.S. DOT shifted its focus away from an automated highway system in part due to concerns that “the victims . . . might blame either the vehicle manufacturer or the state highway department” and that “[b]oth automakers and state highway departments might be reluctant to embark on full automation unless their liability were limited” (U.S. General Accounting Office, 1997, p. 5).

Liability for state and local governments presents a complex picture as differing jurisdictional laws determine a local government’s road safety legal duty. For example, in the State of New York, municipalities’ non-delegable duty to maintain streets and highways insulates them from liability so long as the design and implementation is “reasonably” believed to be safe, but that also means that once local government officials or their agents are aware of a potentially dangerous situation, they have a duty to remedy it (Cornell Local Roads Program, 2011).¹⁵

As attention shifted from automated highways to vehicle-based ITS, legal analyses have centered more on driverless cars and privacy and data security concerns. But it is likely that future ITS will involve a combination of government and private services that link with one another in a variety of ways to monitor and even control traffic movements. The U.S. DOT’s Connected Vehicle Program envisions a wireless communications network that connects vehicles and roadway infrastructure (Intelligent Transportation Systems Joint Program Office, 2015b). Such a network will necessarily entail careful coordination to integrate the various hardware and software systems from multiple providers, including government (Ayers, 1994).

Advancement in cooperative vehicle-highway automation systems requires public agencies to take the lead in developing the highway side of the infrastructure before the private sector will invest on the vehicle side (Shladover, 2012). As V2I communication is expanded, state and local transportation agencies and municipalities will likely become involved in setting up and maintaining roadside equipment and providing real-time data feeds on traffic, road, and weather conditions directly to drivers, warning of specific hazards or advising they follow specific routes. While governments may not be legally required to provide these services, there may be risks for those that do, particularly if drivers reasonably rely on receiving such information.

In sum, as automated highway information and control systems become commonplace, municipalities and highway departments may find themselves increasingly responsible for their safe operation (Ayers, 1994). Under the concept of sovereign immunity, it is possible for governmental entities to be legislatively protected against liability in specific situations,¹⁶ or legislation could cap damages paid to those who successfully litigate (Rall, 2010). But, as noted above, grants of immunity could discourage ITS system diligence by local governments protected from legal action. Absent guiding legislation or regulation, the courts could choose to extend existing highway maintenance duties to ITS infrastructure, or they could choose to distribute the liabilities in some different, yet to be determined manner.

As roads continue to grow “smarter” along with the vehicles they convey, the lines between infrastructure and vehicles, and between public and private roles and responsibilities, will continue to blur. For many players on the ITS landscape, advanced deployment will increasingly entail the integration of public and private infrastructure systems, and apportioning liability among them is sure to become more complicated (van der Heijden & van Wees, 2001).

Manufacturer Negligence and Products Liability

Technological failures have long been addressed under the “products liability” branch of tort law, which places the burden of liability for safety on private manufacturers, and provides incentive to maximize the reliability and safety of mechanical and technical systems in a cost-effective manner.¹⁷ The stakes are raised with ITS, though, because of the greater safety risks inherent in transport compared with, say, televisions. In addition, as described above, the often complex intermingling of public and private systems, actors, and data that will likely characterize the future of ITS means that a straightforward products liability scheme may be insufficient (Marchant & Lindor, 2012).¹⁸ As noted earlier, imposing higher standards on intelligent vehicle manufacturers or other providers may inadvertently discourage improvements that may be considerably safer than the typical human operated vehicle without ITS.

Unlike products liability, under general tort liability theory, the court determines damages according to which party is at fault. Apportioning liability among multiple parties is a difficult judgment, and courts vary in approach. In jurisdictions that recognize defenses of “contributory” or “comparative” negligence, an injured driver may be denied recovery or have an award reduced if the court or jury determines that he or she was partly responsible for an accident. Some states use a no-fault system of liability for automobile crashes, prohibiting victims from suing other drivers unless there is a threshold level of injury (Kalra et al., 2009).

These already substantial and complicated differences in the apportionment of liability damages could be exacerbated by the shared vehicle control inherent in intermediate navigation and guidance technologies. A finding of negligence on the part of either the driver or the manufacturer implies a breach of an appropriate standard of care and usually involves weighing and balancing the costs of taking greater precautions against the added safety benefits of the improved product. For instance, failure to include clear manual override options for automated technology could be considered negligent on the part of manufacturers. This could incentivize manufacturers to design devices that frequently call for manual override to minimize liability, thereby undercutting the safety benefits of some advanced ITS technologies. Or, as noted above, drivers may become justifiably inured to letting the ITS take control based on its typically superior driving capability, and manufacturers could conceivably be faulted for not adopting ever more advanced technologies to both monitor driver awareness and offer early warnings when circumstances demand drivers’ attention.

This highlights a key element of the negligence framework: Overall safety benefits of a product or service to society at large must also be weighed when determining liability (Marchant & Lindor, 2012). The social value of partial vehicle automation may be less readily apparent to courts and juries as they focus on an individual victim’s injuries, though awareness of the potential benefits of automation may increase as more and more cars have back-up cameras and rear sonar, lane departure warning systems, and the like. Although some observers fear that successful near-term litigation over some vehicle ITS failure may establish liability precedent that subsequently discourages deployment of new ITS safety features (Garza, 2012).

To manage ITS manufacturers’ legal exposure, Kalra et al. (2009) recommend integrating benefit–cost analysis directly into liability determinations to include the overall social benefits from fewer collisions, and the reduced repair and medical costs that result, to incentivize ITS safety improvements. Similarly, Anderson et al. (2014) recommend that liability rules be designed to encourage intelligent vehicle technology deployment whenever it is superior to average human drivers, even if some ITS errors, injuries, and deaths inevitably occur. Finally, Goodrich (2013) suggests that states adopt uniform standards that clearly define when a vehicle is in automated mode (thereby shifting liability to the manufacturer) as opposed to being operated “in a meaningful way” by a human being. While a clear distinction in theory, in practice, vehicle control is increasingly being shared between drivers and ITS technologies, a complex partnership that is likely to continue for many years to come.

Contractual Protections

Manufacturers may gain some protection from warranties or contractual clauses that indemnify them from suits by users. For example, many GPS devices require users to agree that they will not use the device while driving, but the effects of such limitations on warranty liability vary from state to state (Neger, 2008). Courts sometimes throw out such contracts where one party is viewed as relatively powerless to negotiate terms and assume liability (known in U.S. legal circles as a “contract of adhesion;” Sterkin, 2004). Compulsory contractual agreements have been used by manufacturers of electronic tolling devices to waive liability for data privacy breaches, though they remain untested by the courts (McDonald & Cranor, 2006). In any event, contractual agreements would not cover liability for injuries to third parties.

With respect to managing risk and limiting exposure, Smith (2014) suggests that ITS providers could require users to return systems after a set period of time (as GM did with its EV-1 electric car), which would limit manufacturer liability for outdated technologies by preventing their re-sale. ITS providers might also use the vehicle’s telematics to disable products for violations of usage policies, unauthorized third-party modifications, or failure to return the device. Another possibility is a business model centered on supplying intelligent vehicle services through subscriptions—paying on a periodic or on-demand basis to use particular features. This approach would make it easier to restrict features to certain areas, routes, times, and so on to manage liability exposure (Anderson et al., 2014). Some have suggested that ITS providers could limit their equipment and services to commercial fleets and operators that can closely supervise the use of ITS by drivers (Anderson et al., 2014; Smith, 2014), though this could simply shift risk by increasing employers’ exposure under workers compensation.

Discussion

The accelerating development of ITS and the novelty of fully automated driving on the horizon pose significant challenges for the slow moving American legal system. How liability will be apportioned among the interconnected web of manufacturers, consumers, and governments who deploy, support, manage, and use these increasingly advanced technologies in the years ahead remains an open question. While scholars have devoted considerable attention recently to the liability issues associated with fully automated driving technologies, less attention is being paid to the looming legal issues posed by the current evolution of ITS technologies finding their way into vehicles and onto streets. Legal precedents established regarding ITS liability, likely decided on narrow grounds, may significantly affect the future of ITS—perhaps by reducing liability uncertainty and encouraging ITS development and use, or perhaps by increasing liability risk to manufacturers, service providers, and governments thereby slowing ITS deployment. Well-crafted state or federal legislation addressing ITS liability exposure for manufacturers, service providers, and governments, as well as protection for consumers, could substantially reduce uncertainty, ease liability risks, encourage development and deployment, and prevent a disparate landscape of state laws that may frustrate both manufacturers and consumers. Such legislation would necessarily have to address the larger transportation systems hosting the ITS technologies as well. Given the rapid evolution of ITS, such comprehensive legislation in the near term would be a tall order indeed. Thus, it is likely that considerably more ITS development and experimentation are needed before comprehensive safety standards and liability protocols can be crafted. In the interim, it will be up to the courts to incrementally establish liability standards for ITS technology claims, including whether to uphold contractual waivers of liability. Simultaneously, it is likely that should the number of ITS-related liability cases begin to mount, ITS industry groups will move to both self-regulate and press for government regulation to maintain consumer and government acceptance and prevent large and possibly disruptive tort claims. Consumer groups worried that ITS legal protections are unfair to victims of ITS-related crashes by excessively limiting avenues for redress may likewise advocate for state or even federal intervention on behalf of consumers. So, while many other technologies have gradually and incrementally developed liability standards through the courts, the liability questions raised by ITS are especially complex, which may mean that federal legislation will eventually emerge should the industry begin to flounder in a quagmire of liability claims that hinder, or even halt, its promise and development.

Footnotes

Acknowledgements

The authors thank three anonymous referees for their helpful comments on earlier drafts of this article.

Authors’ Note

Any errors or omissions are the responsibility of the authors and not the granting agency.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The research for this article was funded by a grant from the National Science Foundation, and the authors are grateful for this support.

Notes

Author Biographies

Jaimee Lederman is an urban planning doctoral student in the UCLA Luskin School of Public Affairs. Her research focuses on regional transportation policy and politics. She was previously a practicing attorney specializing in antitrust law.

Mark Garrett is a research faculty member in the Institute of Transportation Studies and Lewis Center for Regional Policy Studies in the UCLA Luskin School of Public Affairs. His research emphasizes land use and transportation law and policy.

Brian D. Taylor is a professor of urban planning, director of the Lewis Center for Regional Policy Studies, and director of the Institute of Transportation Studies in the UCLA Luskin School of Public Affairs. His research emphasizes transportation finance, politics, and policy, as well as travel behavior.

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