In Defense of the ‘Driver-in-Command’—What Regulators and Courts Can Learn From Aviation as Cars Begin to Drive Themselves
By Justin Strochlic, Patton Boggs
The scene is a crowded supermarket parking lot on a busy Sunday afternoon. The pavement is a swirl of traffic—the rattle of shopping carts, customers hustling to and from the store, drivers slowly patrolling, searching for empty parking spaces. Out of the store steps a man bending slightly to clutch the hand of his toddler, a full bag of groceries cradled in his other arm. They make their way across the crosswalk, then down a row of parked cars. What happens next takes only a few seconds: a quart of milk topples from the grocery bag, the man instinctively bends to try and catch it—misses—the carton splits across the asphalt and milk explodes. Momentarily distracted, his grip on his child’s hand loosens and she breaks free, darting only a few feet—and directly into the path of an SUV that is backing out of a space. The SUV’s brakes slam and the vehicle stops, the distance between the vehicle’s rear bumper and a potential tragedy measured in under an inch. The scenario is so commonplace as to be clichéd. But what has happened is revolutionary. You see, the driver of the SUV never saw the child, never touched the brakes, and in fact had his foot on the accelerator the whole time—even after the vehicle had come to a complete stop.Uncertain Legal Impact
The technology allowing this life-saving miracle is no longer the stuff of science fiction and, as of this year, is available in vehicles sold to the general public. As a product, it represents yet another small step toward one of the Holy Grails of unmanned systems development: the driverless car. Its impact on the legal landscape could, however, be much greater.
Here, unlike other collision avoidance systems that are becoming prevalent on automobiles, such as those providing a visual or audible warning of an inadvertent lane change or a vehicle in a blind-spot, this system is designed not merely to warn the driver to avoid an accident, but to actually avoid the accident.
Predictably, this technology has already captured the attention of the plaintiffs’ bar, a number of whom are anxiously heralding the dawn of a new driverless era where every fender bender would supposedly be the fault of a deep-pocketed auto manufacturer. The insurance industry too, is closely monitoring the legal impact of these systems, as insurers brace for a number of potential ramifications that could dramatically impact the types of coverage advisable for drivers, original equipment manufacturers, and third-party vendors to carry.
All of this, however, begs the question: As vehicle automation systems continue to proliferate, where do a driver’s responsibilities go? One way to determine the answer might be to look to aviation, where autopilot systems of various levels of sophistication have been around for decades, installed in everything from commercial airliners to owner-flown single engine pistons. But no matter the sophistication of the aircraft or its equipment, the FAA regulations are clear: The Pilot in Command is responsible for the safe operation of the aircraft at all times.1 This includes knowing the capabilities and working condition of the autopilot and possessing the skill to identify those situations in which the autopilot should not be trusted to safely fly the aircraft.
The National Transportation Safety Board (NTSB) has consistently ruled against pilots who have sought to attribute their violation of flight regulations to the autopilot or other flight management systems. In Belger v. Moore,2 the NTSB considered the appeal of the pilot of a commercial airliner, who was found to have violated several FAA regulations by flying too close to another aircraft while on approach to LAX.3 As part of his defense, the pilot attempted to argue that he had reasonably relied upon the aircraft’s autopilot system and that the system had malfunctioned.4 In rejecting this argument, the NTSB stated: “We have consistently held that the responsibility of the airline transport pilot to fly the aircraft cannot be transferred to equipment that is intended to be an assist to the pilot. We have discussed this principle many times in relation to autopilots and other cockpit electronics.”5 More recently, in 2007, the NTSB re-affirmed this principle in a case where a pilot attempted to partially attribute his improper deviation from an air traffic controller’s flight clearance to his reliance upon the aircraft’s flight management system.6 With regard to this defense, the NTSB noted:
[The flight management system] is a very useful tool. But a pilot cannot simply give control of the aircraft over to the flight management system. … The pilot is expected to supervise the instrumentation and make sure that the flight path taken by the aircraft is in compliance with the clearances received.7
Likewise, in the world of aviation accident wrongful death lawsuits, plaintiffs have not fared well when defendants are able to establish that the plaintiff’s pilot decedent placed excess reliance on the autopilot in the moments leading up to the accident. For example, in Lohman v. U.S., et al., the District of Colorado ascribed 60 percent of the fault to the pilots in a wrongful death lawsuit where, the court ruled, the pilots ought not to have relied upon the autopilot to execute one of the aircraft’s final maneuvers.8
Lessons From Aviation Litigation
Adapting this sort of regulatory and legal framework to our current world of “sometimes-driverless” automobiles may make good sense. Drivers are vested with a degree of responsibility for the safe operation of their vehicles in a manner at least somewhat analogous to that of pilots over their aircraft.9 Particularly today, when the driverless technology available to consumers is in its infancy, it does not seem onerous to require that drivers maintain the safe-driving skills that they have always been required to exhibit and never fully relinquish their own situational awareness to a collision avoidance system.
Indeed, similar to aviation, the standard of care may demand that drivers learn the capabilities and limitations of the new safety systems in their vehicles and possess the ability to recognize those situations in which reliance on those systems is not warranted. The day may come when driverless technology progresses to a point where the driver is supplanted entirely. But until such time, the law—particularly if it draws from aviation precedent—likely will continue to hold drivers to the same standards it always has.
Justin Strochlic is a partner with Patton Boggs LLP. He advises defense contractors and other major industries in the areas of complex civil litigation, including products liability, toxic torts, consumer fraud and international law. Strochlic has also implemented defense strategies for companies that have been sued based upon their provision of goods or services to the United States or foreign governments. The author can be reached at firstname.lastname@example.org.
This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. Bloomberg Finance L.P. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.
© 2012 Bloomberg Finance L.P. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of Bloomberg Finance L.P.