Firm-Wide blog

Law and Technology

By Burg Simpson
April 22, 2022
6 min read
Artificial Intelligence

By David Chavez

Law && Technology

The complicated case of liability when an autonomous vehicle crashes.

Some questions invite obvious answers. You are hit by a car, sue the driver. If the car malfunctions, sue the manufacturer or the servicer. Perhaps if the driver was drunk, sue the person serving the booze. There is a fairly straightforward path to root causes, & thus potential targets for blame & accountability. Yet advances in technology can make things cloudy, actually … it may be downright obscure. In this article we shall explore the nascent realm of autonomous vehicles & who pays when things go horribly wrong.

Before we get to the law, let’s start with the technology. Since autonomous vehicles are only now starting to deploy on American highways, let’s start at the beginning of that beginning: the genesis of driverless vehicles. The first instance of remote-controlled cars that the author found in news media was in 1925. Francis Houdina, an inventor, was able to use a radio to remotely start a car, accelerate it on its way, & activate the car’s horn. As with many first attempts … the demonstration ended ignominiously with the vehicle crashing.

In the years that followed, General Motors continued with experiments leveraging sensors in the car, & beacons in the road to help with guiding. Eventually, the approach began to use cameras to “see” lines on the road. That soon progressed to using image processing to “see” the road & what may be in or on the road. Later artificially intelligent computer software was designed to mimic the decisions a driver would make under some conditions allowing vehicles to steer themselves. Strictly speaking, these were not driverless vehicles as humans in the driver’s seat could accelerate, brake, & take over if something seemed amiss.

On the computer side of things, the technology continues to advance with better and better artificial intelligence software, better resolution cameras, better sensors on road conditions, & just the improvement that naturally follows when many companies are competing to lead as is the case today. However, the technology is far from foolproof, in fact, it is difficult to argue that any street vehicle is autonomous as most require humans to assist or even take over under a variety of increasingly narrow conditions. It should surprise no one that the law significantly lags technology deployment. While rules start with government officials, laws are the domain of elected officials & they usually wait until the time is politically expedient to take any action. In the case of autonomous vehicles, not much is settled.

On March 10th, 2022, US regulators issued new rules allowing autonomous vehicles to be deployed without steering wheels & acceleration & deceleration controls. General Motors is already petitioning to deploy vehicles under this revised rule. Any commercial deployment still requires a successful application to the US National Highway Traffic Safety Administration.
At present, there are no laws to guide the allocation of liability in the event of an autonomous vehicle crash. However, one must be careful when defining the vehicle as autonomous; for instance, claiming a modern Tesla running software that assists a human driver in a variety of circumstances to be autonomous is in fact dubious. By definition, there are a variety of circumstances where the vehicle is not assisting the driver, & so the driver will bear significant liability.

An area of new uncertainty involves a car malfunction. Some will likely continue to be straightforward: if the tire malfunctions, significant liability follows to its manufacturer &/or servicer. Likely the same for a physical parts failure. The interesting part comes when the problem is instead a software failure. The software needed to run an autonomous vehicle successfully is voluminous & complex. Without being complete: the software will include major components to operate (operating system), see its environment (computer vision), sense conditions (sensor fusion), understands its environment (cognitive framework), decide what to do next (decision framework), control the vehicle (robotic stimulus), & the collection of software needed to configure, manage, and update itself.

Could a software bug in a specific software module cause a specific developer or group of developers to be liable? Unquestionably. What if the software is not algorithmic (as is often the case with artificial intelligence) nor deterministic (when the same input can result in different output)? This is not settled law. It may not be settled law anytime soon for a very practical reason. There are car accidents that occur every year, in fact, there were 33244 fatal car accidents in the United States in 2019. What kind of law would a politician draft if it can be shown conclusively that Artificial Intelligence based autonomous vehicles reduced the number of fatal accidents by 50%. If you said, they would probably limit liabilities on the technology providers, your bet coincides with the amount of money and research technology companies are putting into this area. As with anything political, it will remain to be seen where all this will end up, but for now, it will be the wild west when it comes to litigation of autonomous vehicle accidents & for now software providers are squarely in the sight of people allocating blame. Until legal clarity is provided for, it will likely be a bonanza for litigators in what will surely be a pile of new suits where an autonomous vehicle injures somebody.

About Burg Simpson Eldredge Hersh & Jardine

The award-winning trial lawyers at Burg Simpson never hesitate when fighting for our client’s rights and consistently face and defeat formidable adversaries at trial. Burg Simpson has secured more than $1.7 billion in verdicts, settlements, and judgments in practice areas spanning catastrophic personal injury, mass tort and class actions regarding gas explosions, dangerous pharmaceutical drugs and devices, medical malpractice, complex commercial and business litigation, construction defects, and workers’ compensation.

The firm was founded in 1976 by Michael Burg. Mr. Burg is an inductee into the Trial Lawyer Hall of Fame and a recipient of the Clarence Darrow Award. Mr. Burg has also been consistently recognized by his peers as a Best Lawyer in America® and a Colorado Super Lawyer®. Burg Simpson Eldredge Hersh & Jardine is based in Colorado and has offices in Arizona, Florida, Nevada, New Mexico, Ohio, California, and Wyoming.

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