Self-Driving Cars are Coming! Who is at Fault When a Crash Occurs?
Last year, while cruising down a Florida highway in his 2015 Tesla Model S, which was operating via its state-of-the-art Autopilot system, Joshua Brown crashed into a tractor-trailer at 74 miles per hour. The Autopilot system’s radar and cameras failed to recognize that a white truck was crossing the highway right in front of it. The National Highway Traffic Safety Administration concluded that the system performed as it was designed, meaning it was not defective. A spokesman for the agency noted that because Mr. Brown had at least seven seconds to notice the truck, he was most likely not paying attention to the road.
A few months later, Mark Molthan’s Autopilot failed to navigate a bend on a rural Texas highway, striking a cable guardrail multiple times, actually accelerating after the first impact. Because Mr. Molthan was cleaning his dashboard in the seconds leading up to the accident, Tesla can point to its website and owner’s manual, which stress that drivers need to pay full attention to the road, keep their hands on the wheel and be prepared to resume unassisted driving at any time. Mr. Molthan’s insurance company can then make a products liability claim against Tesla in response. But the outcome would be difficult to predict because Texas law is mostly silent regarding the liability of drivers and manufacturers of autonomous and semi-autonomous vehicles.
Accidents involving vehicles such as the Tesla Model S are sure to lead to product liability actions. This is true whether the driver is injured and is suing the manufacturer, or whether an injured third-party sues the manufacturer. In Texas, injured parties will be able to base their claim on up to three different theories of liability: strict liability, breach of warranty, and negligence. The more autonomous the car, the more likely courts are to shift liability from the driver to the vehicle’s manufacturer. If the plaintiff pursues the theory of strict liability, the claim may be predicated on a manufacturing defect, a design defect, or a failure to warn.
In the case of drivers who are injured, because their autonomous or semi-autonomous vehicles do not function properly, Texas’s proportionate responsibility statute may bar recovery in some instances. This is because if a claimant is determined to be more than 50 percent responsible for an accident, he is not permitted to recover damages even if the other party is strictly liable. For instance, in Mr. Molthan’s case, the fact that he took his hands off of the wheel to clean his dashboard may lead a trier of fact to conclude that he was 60 percent responsible for the crash, meaning he could not recover damages.
Another likely scenario is one where the driver and the manufacturer are joint tortfeasors. In Texas, if you are injured by a semi-autonomous or autonomous vehicle, you may be able to sue both the operator of the vehicle and the manufacturer for negligence and strict liability, respectively. If the vehicle’s operator and the manufacturer are found to be jointly and severally liable, full recovery can be made from either, leaving the non-paying defendant with a possible contribution action against the overpaying defendant.
Due to the uncertain nature of the law regarding liability in autonomous vehicle accidents, if you are involved in an accident involving an autonomous vehicle, you should contact a legal professional in your area for assistance.
 Neal E. Boudette, Tesla’s Self-Driving System Cleared in Deadly Crash, N.Y. Times (Jan. 19, 2017), https://www.nytimes.com/2017/01/19/business/tesla-model-s-autopilot-fatal-crash.html.
 Dana Hull, Texas Man in Tesla Autopilot Crash Won’t Sue, But Car Insurer May, Ins. J. (Aug. 19, 2016), http://www.insurancejournal.com/news/southcentral/2016/08/19/423918.htm.
 Cf. An Act of May 18, 2017, 85th Leg., R.S., H.B. 1791, § 1 (to be codified at Tex. Transp. Code § 545.062(d)) (allowing “an operator of a vehicle equipped with a connected braking system that is following another vehicle equipped with that system” to use that system to maintain a sufficient following distance).
 Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 418, 423 (Tex. 1984).
 Tex. Civ. Prac. & Rem. Code §§ 33.001–002 (2017).
 See, e.g., Megan Cassidy, Official: Tesla ‘autopilot’ car hits Phoenix police motorcycle, azcentral.com (Mar. 27, 2017), http://www.azcentral.com/story/news/local/phoenix/2017/03/27/tesla-self-driving-car-hits-phoenix-police-motorcycle-second-accident-involving-automated-vehicles-days/99710786/.
 Tex. Civ. Prac. & Rem. Code § 33.015 (2017).