Liability rules threaten autonomous truck uptake

Truck driver shortages are one of the leading reasons for recent supply chain woes but the issue is hardly new. Lack of drivers has been the top-rated problem affecting heavy trucking for the last five years in industry surveys. And, according to experts, it is unlikely to get better. The American Trucking Associations predicts that the current shortage of over 60,000 drivers will grow to over 160,000 by 2028.

Many have pointed to driverless trucks as a solution, and although fully autonomous trucks requiring no human input may be years away, progress towards total autonomy has been accelerating. In Nevada, Daimler Truck North America is testing driverless trucks at highway speeds with the goal of bringing SAE Level 4 trucks to public roads by 2030. Other developers of this technology, such as TuSimple, report similarly rapid progress, with plans for autonomous freight routes along strategic transportation corridors.

Discussions about how quickly this dream will become reality tend to focus on technological and regulatory hurdles, but another important factor is the risk of liability for accidents involving driverless trucks. Concerns about the risk and cost of litigation already loom large in the traditional trucking industry, frequently rated as a top concern alongside the driver shortage. Ultimately, such concerns could hamper the use and acceptance of this technology.

Liability rules

Disputes about who is responsible for damages caused by an accident are typically resolved in the legal system. Although each state has its own system of laws for dealing with such disputes, the law has, with important exceptions, generally moved toward apportioning responsibility based on culpability. Faced with the risk of potential litigation, companies can take many steps to reduce and spread the cost of that risk, including buying insurance, which can cover both damages caused by an incident and the cost of defending a lawsuit. The more expensive it is to mitigate the risk of liability associated with driverless trucks, the slower their widespread adoption will likely be.

In the long term, increasing automation is expected to reduce accidents caused by human error, thereby reducing accidents overall and thus lowering liability risk. But in the short term, the cost of mitigating liability risk for driverless trucks could be higher than conventional trucks. One reason is uncertainty around how existing legal frameworks will apply to accidents involving driverless trucks. Under current legal rules, liability can be spread among many entities. As a result, an injured plaintiff might not only sue the driver of a truck, but also the trucking company, the vehicle (and component) manufacturer, and even the dealer that sold the truck.

Decisions about whether the vehicle was defective, and likewise, who should be liable, are not made until after an accident occurs. And in most states, a vehicle can be deemed defective even if the manufacturer complied with all standards and regulations and exercised an appropriate level of care in its design and manufacture. These rules make it difficult to assess liability risk in advance, especially when it comes to new and emerging technologies. For example, one of the tests for whether a product is defective is called the consumer expectations test. That test asks the jury to balance the risks and benefits of a product’s design and provides that a product is defective if it fails to meet the expectations of a hypothetical reasonable consumer. But how does a jury decide what a reasonable consumer should expect with complex products like autonomous trucks that until recently were the stuff of science fiction? In the near term, uncertainty over how these legal rules should apply could make lawsuits involving this technology more difficult and costly to resolve.

In the short term, the cost of mitigating liability risk for driverless trucks could be higher than conventional trucks

The complexity of driverless trucks could impact the cost of litigation in other ways too. For example, with drivers out of the picture, lawsuits will likely focus on technical issues regarding the design and operation of the vehicle. Although certain features of driverless trucks, such as sensors and event data recorders, may provide useful evidence for determining fault in the event of an accident, such information doesn’t necessarily make liability litigation easier to resolve. To the contrary, the more technical the process of determining an accident’s cause, the more likely it is that costly experts will be needed and deployed by both sides. These factors could make litigation outcomes less clear, and increase litigation risk and expense, especially in the short term.

The potential of perceived risk to slow adoption

The negative effect that increased litigation risk might have on the adoption of driverless trucks could be amplified by inflated perceptions of that risk. The history of the elevator illustrates this problem well. 150 years ago, when passenger elevators were first developed, the public was terrified of riding in them, and building owners were reluctant to install them. It was only when elevator manufacturers undertook an international public relations campaign to demonstrate the fail-safes incorporated into elevator design that they gained public trust in elevators as an indispensable tool of modern architecture.

Today, the same type of hesitancy affects consumer views of autonomous cars, as many report that fear and uncertainty about the loss of human control inhibit their willingness to try such technology. Similarly, fear of litigation can slow a business’s adoption of a new technology. This perception is directly related to so-called “nuclear” verdicts, i.e., cases with damages topping US$10m, which have skyrocketed in recent years. According to a study of truck accident cases litigated between 2006 and 2019, the frequency of awards over US$1m shot up over 300% during that period. And the numbers keep climbing. In November 2021, a Texas jury awarded US$730m in a wrongful death case arising from a single accident where a cargo truck carrying an oversized load crashed into another vehicle.

How might the adoption of driverless trucks impact this trend? There are at least some reasons why such cases could tend to yield higher damages awards. With increased automation, questions about a truck’s design and manufacture are bound to be even more central to determining liability, since they are issues that are inherently systemic. Likewise, if juries have high expectations for how driverless trucks should perform, they might be even more willing to mete out punishment when failures do occur. Will the autonomous factor cause juries to change their assessments of the value of these cases, or merely shift the allocation of fault? And if juries do end up viewing at least some cases involving driverless trucks as deserving of high damages awards, how will this affect trucking companies’ perception of litigation risk? Only time will tell. But in the meantime, this uncertainty may both increase risk and the perception of that risk.

Ultimately, it remains to be seen how the law will evolve and apply to driverless trucks, and likewise, how the trucking industry will navigate the risk of potential liability for this new technology.

About the author: Alletta Brenner is a Counsel focusing on complex product liability litigation in Perkins Coie’s Portland office