There are many good reasons to be optimistic about the rapid advancements in autonomous vehicle technology. Self-driving cars have the potential to reduce crashes and save lives by taking human error out of the driving equation. And it appears as though the transition to self-driving vehicles may occur sooner rather than later. As we wrote last week, Florida has already green lit Peloton’s plans to beta test its “platooning” technology on public roads. This technology connects several “partially” autonomous semi-trucks together to create a convoy of big rigs headed up by just one human driver, who in turn has control over the speed and braking of all of the following semi-trucks.
Unfortunately, the push towards the deployment of autonomous vehicles may have a disastrous legal side effect in the form of federal preemption. While self-driving cars have been regulated exclusively at the state level so far, auto manufacturers are actively pushing for federal oversight and regulation of this technology. And it appears as though they have the ear of the federal government. We recently learned that the National Highway Traffic Safety Administration (“NHTSA”) spent the last several years developing guidelines and model legislation for self-driving cars, and during this process, consulted with auto makers and software developers, but not the general public or consumer safety advocates.
NHTSA has promised to issue its self-driving car guidelines this summer. Consumers and consumer advocates should carefully monitor both the guidelines and any subsequent federal action in this regard. As we’ve seen in various contexts ranging from airbags to medical devices, the language contained in federal rules, guidance, and even commentary can have a case-killing effect for plaintiffs who file suit years or even decades later. With that in mind, this article will provide a concise overview of the state of the law with respect to self-driving cars, will provide our understanding as to what can be expected in the new guidelines, and will conclude by analyzing the danger of federal preemption.
State Regulation of Self-Driving Cars
Nevada was the first state to pass self-driving car legislation back in 2011, opening the doors for Google to begin operating self-driving cars on roads within the state. Since then, Nevada has been joined by seven other states—California, Florida, Louisiana, Michigan, North Dakota, Tennessee, Utah, and Washington D.C.—which have enacted their own type of self-driving car legislation. Additionally, the Governors of Arizona and Virginia have both taken action to support the development of autonomous vehicles within their states.
Some states, like California, have taken a careful and considered approach, only allowing for self-driving vehicles to be operated as part of a testing program, and further requiring “a driver in the driver’s seat, ready to take control for testing purposes.” On the complete opposite end of the spectrum sits Florida, which recently eliminated the requirement that self-driving vehicles be operated only for testing purposes. Instead, the state now allows anyone with a driver’s license to “operate” a self-driving vehicle for any purpose. Florida law also now loosely defines “operate” to mean turning the autopilot on, “regardless of whether the person is physically present in the vehicle while the vehicle is operating in autonomous mode.” As a result, a car that is capable of either being remotely controlled or bringing itself to a “complete stop” can now drive itself around the Sunshine State, no questions asked.
Moreover, Florida, Maryland, and Washington D.C. have each passed laws absolving vehicle manufacturers from liability in crashes involving vehicles that were converted into being autonomous by a third party. However, these statutes do not absolve the vehicle manufacturer from liability if the car was “designed to be autonomous.” They likewise do not prohibit products liability or negligence actions against the entity responsible for converting the vehicle.
The Push for Federal Oversight
Industry stakeholders, including the traditional Big Auto players and newcomers like Google, Lyft, and other software companies, have severely criticized the state-by-state approach. In doing so, they invoke a familiar refrain—that a “patchwork” of laws threatens to “stifle innovation.” To solve this problem, they are calling on the federal government to promulgate federal regulations that will ensure consistency across the country. And it looks like they may get their wish as high ranking officials for both the U.S. Department of Transportation (“DOT”) and the National Highway Traffic Safety Administration (“NHTSA”) have promised to publish guidelines sometime this year.
The federal guidelines, which remain unpublished as of the time of this writing, were the primary focus of this year’s Autonomous Vehicle Symposium in San Francisco, California. Our law firm attended this symposium in the hopes of finding out what consumers could expect to see with the new “guidance”—which NHTSA was expected to announce at the Symposium. Although NHTSA did not announce the guidelines last week as expected, DOT Secretary Foxx announced that the guidelines would be published before the end of the summer. Unlike the statutory Rulemaking process NHTSA typically uses for new auto technologies, NHTSA has elected to not involve consumers or safety advocates in the “process” for developing the new guidelines for autonomous vehicles. The agency did, however, consult with industry stakeholders while working on the guidelines over the past several years.
During the symposium, DOT Secretary Anthony Foxx and NTHSA Administrator Mark Rosekind made it clear that the Obama administration is solidly behind autonomous vehicles because they believe the technology may save thousands of lives each year. According to Rosekind, NHTSA’s research shows that autonomous cars might eliminate as many as 19 out of every 20 accidents. With respect to content and scope, Rosekind indicated the guidelines will likely contain some type of model state legislation and regulatory language to avoid having different rules enacted in different states. DOT Secretary Foxx also indicated the guidelines will probably include a pre-sale approval process for production autonomous vehicles.
The Danger of Federal Preemption
Over the last few decades, the United States Supreme Court has established a federal preemption doctrine that has permanently barred the courthouse doors to countless injured consumers and their families. This doctrine notoriously reared its ugly head in Geier v. Am. Honda Motor Co., Inc.—a 2000 decision in which SCOTUS held that so-called “no airbag” products liability cases are preempted by federal “objectives,” which the Court discerned from comments the DOT made back in the 1980s. SCOTUS struck again a few years later, holding that the Food and Drug Administration’s premarket approval process preempted state tort claims against a medical device manufacturer in Riegel v. Medtronic, Inc. This precedent creates a significant danger for consumers given the possibility for significant federal involvement in the design, manufacture, and deployment of self-driving cars.
Of course, the industry is well-aware of its opportunity to score a major preemptive strike against the products liability plaintiffs of tomorrow. Back in 2009, the RAND Corporation released a report entitled “Liability and Regulation of Autonomous Vehicle Technologies.” In that 2009 report, the authors posit that “manufacturer liability is expected to increase” with the advent of self-driving cars, and that “this may lead to inefficient delays in the adoption of these technologies.” One of the potential solutions discussed in the report is “regulatory preemption—requiring manufacturers to incorporate the most-promising forms of this technology by regulatory fiat but simultaneous exemption of the manufacturers from state court liability.” The 2009 Report also determines that, assuming autonomous vehicle regulations are promulgated, “it is likely that state tort law claims that were found to be inconsistent with the objective of the regulation would be held preempted under the analysis used in Geier.”
The risk of preemption is further magnified by the fact that President Obama will be leaving office in just a few months, and we have no idea what the executive cabinet is going to look like three of four years from now. As stated above, NHTSA elected to issue guidelines this year, which are non-binding in nature. Should NHTSA later decide to initiate the rulemaking process to create binding federal rules while under pro-preemption leadership, the agency could lay the groundwork for sweeping victories by Big Auto. For instance, the agency may include express preemption language, or alternatively, provide mere commentary, ala the Reagan-era DOT comments relied upon in Geier. Additionally, should some future administration promulgate binding rules requiring pre-sale approval, defendants may attempt to avail themselves of the types of arguments advanced by the medical device and pharma defendants in cases like Riegel. As we saw in both Geier and Riegel, the ultimate success of those preemption arguments might hinge largely, or even entirely, upon the specific language employed in the regulations, guidance, and agency commentary.
Federal Preemption Would Have Disastrous Consequences
Products liability lawsuits often serve as the only viable means for catastrophically injured consumers and their families to obtain the medical care they need to prolong and rebuild their lives. Preempting tort law claims against automotive manufacturers in self-driving car crashes would effectively externalize the cost of these crashes away from the manufacturers which profited from the sale of the vehicle, and onto the injured consumers, their families, and ultimately, the rest of society which would likely be required to pick up the tab for the medical bills and other expenses.
Products liability cases also serve an important truth-finding function for society as a whole. Each and every automotive crash is unique, and the determination as to whether a product had a defect that played into a crash must necessarily be made only after carefully reviewing the circumstances of that particular crash. The jury system allows for this type of case-by-case analysis to be conducted in open court, with each party having a fair opportunity to present their claims and defenses. Federal regulations, on the other hand, by necessity require regulators to make a generalized assessment of the risk and utility of a proposed design, often without significant real-world data to go off of. Federal agencies are also prone to “agency capture” concerns, as bureaucrats may hope to land lucrative private sector gigs after leaving public service. Additionally, NHTSA has been historically underfunded and understaffed, and previous experience with electronic defects in automobiles has shown that federal agencies may not be equipped to get to the bottom of these kinds of complicated technical issues.
A prime example of the value and importance of products liability lawsuits for truth-finding can be seen in the Toyota sudden unintended acceleration debacle. During that investigation, safety advocates and injured consumers contended that a defect in the vehicles’ electronic systems caused the vehicles to accelerate without warning. Toyota, however, sought to blame the problem on faulty floor mats and drivers misapplying the gas pedal. NHTSA ultimately bought Toyota’s explanation, despite the fact that many of the unintended acceleration complaints voiced by consumers clearly did not fit within either the floor mat or pedal misapplication narrative. However, the fight did not end with NHTSA’s investigation. As is often the case, the civil justice system proved to be the only real effective means to get to the truth, as an Oklahoma jury found that a software defect in a 2005 Toyota Camry was to blame for a crash that resulted in severe injuries to one person, and fatal injuries to another.
Thankfully, at least some major industry and government players seem to understand the negative ramifications of preemption. During an “off the record” conversation at this year’s Autonomous Vehicle Symposium, one NHTSA official stated that state tort laws should continue to be the basis to for adjudication of liability when there is a crash involving an autonomous car. Additionally, Volvo has already announced that “will accept full liability whenever one if its cars is in autonomous mode.”
Self-driving cars are already here, and are only going to become more common in the future. This technological breakthrough will radically transform both our roadways and our civil justice system. Unfortunately, existing preemption jurisprudence has created a gateway for manufacturers to secure an early, case-killing victory on this issue. Manufacturers are already geared up and fighting this war. Consumer advocates must be informed and involved to help keep the courthouse doors open for the injured consumers of tomorrow.
Stay tuned. We will continue to monitor and report on any developments, including the new guidelines, as well as any new laws or regulations that may be proposed.
 National Conference of State Legislators, Self-Driving Vehicles Legislation, available at http://www.ncsl.org/research/transportation/autonomous-vehicles-legislation.aspx (July 1, 2016).
 Michael W. Reynolds, Jason A. Orr, A State-By-State Guide to Driverless Car Regulations, Law360 (July 20, 2016), available at http://www.law360.com/articles/819698/a-state-by-state-guide-to-driverless-car-regulations.
 Fla. Stat. § 316.85; Victor Luckerson, Where Can You Even “Drive” a Driverless Car? Florida. Definitely Florida, The Ringer (June 10, 2016), available at https://theringer.com/driverless-cars-google-state-laws-5523af5ac21d#.z9njxldt5.
 Fla. Stat. § 319.145.
 Fla. Stat. § 316.86; D.C. Code Ann. § 50-2353; Mich. Comp. Laws Ann. § 257.817.
 John W. Terwilleger, Navigating the Road Ahead: Florida’s Autonomous Vehicle Statute and Its Effect on Liability, Fla. B.J., July/August 2015, at 26, 32
 Nathan Bomey, Self-Driving Car Leaders Ask for National Laws, USA Today (March 15, 2016), available at http://www.usatoday.com/story/money/cars/2016/03/15/google-alphabet-general-motors-lyft-senate-commerce-self-driving-cars/81818812/.
 Bruce Brown, NHTSA Autonomous Car Guidelines Coming by July, Digital Trends (June 15, 2016), available at http://www.digitaltrends.com/cars/nhtsa-autonomous-vehicle-guidelines/.
 Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 875 (2000).
 552 U.S. 312 (2008).
 Nidhi Kalra, James Anderson, Martin Wachs, Liability and Regulation of Autonomous Vehicle Technologies, RAND Corporation, California PATH Research Report, UCB-ITS-PRR-2009-28 (April 2009), available at https://merritt.cdlib.org/d/ark%3A%2F13030%2Fm55x29z8/1/producer%2FPRR-2009-28.pdf
 Sharon Silke Carty, Toyota’s Sudden Acceleration Problem May Have Been Triggered by Tin Whiskers, The Huffington Post (Jan. 23, 2012), available at http://www.huffingtonpost.com/2012/01/21/toyota-sudden-acceleration-tin-whiskers_n_1221076.html.
 Jerry Hirsch and Ken Bensinger, Toyota Settles Acceleration Lawsuit After $3-Million Verdict, Los Angeles Times (Oct. 25, 2013), available at http://articles.latimes.com/2013/oct/25/autos/la-fi-hy-toyota-damages-20131026.
 US Urged to Establish Nationwide Federal Guidelines for Autonomous Driving, Volvo Car Group (Oct. 7, 2015), available at https://www.media.volvocars.com/global/en-gb/media/pressreleases/167975/us-urged-to-establish-nationwide-federal-guidelines-for-autonomous-driving.