Florida Eases Self-Driving Car Rules: Are States And Cities On The Hook For Mishaps?

Florida just passed a law that widens the door for self-driving driverless cars to roam their public roadways and do so without any human back-up driver involved. Some see dangers afoot, others see progress and excitement. Ron DeSantis, governor of Florida, declared that by approving the new bill it showed that “Florida officially has an open-door policy to autonomous vehicle companies.”

There are now 29 states that have various driverless laws on their books, per the National Conference of State Legislatures: Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New York, Nevada, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Vermont, Washington, and Wisconsin, plus Washington, D.C.

Here’s a question that some politicians and regulators are silently grappling with, albeit some think that they have the unarguably “right” answer and thusly have no need to lose sleep over the matter:

Should states, counties, cities and townships be eagerly courting self-driving autonomous cars onto their public roadways, or should those jurisdictions be neutral about inviting them into their locales, or should they be highly questioning and require “proof until proven safe” before letting even one such autonomous car onto their turf?

Part of the answer might relate to a point that I brought up during a panel at the recent AutoSens conference in Detroit, taking place last month and returning to Detroit next year on May 12-14, 2020 (plus, two international offerings, September 17-19, 2019 in Brussels and November 17-19, 2020 in Hong Kong).

The panel was focused on the regulatory landscape of self-driving cars and had the esteemed panelists of Bryant Walker Smith, University of South Carolina faculty member in the School of Law and the School of Engineering, along with Gail Gottehrer, Founder, Law Office of Gail Gottehrer LLC.

The discussion included aspects about which states have gone out of their way to court automakers and tech firms to bring their public roadway tryouts into their jurisdictions, and which ones have not yet taken that bold step. Many would agree that Arizona seems to have been the earliest to extensively roll out the welcome mat, and those that closely follow these matters will distinctly remember the governor there that in December 2016 stated: “Arizona welcomes Uber self-driving cars with open arms and wide open roads. While California puts the brakes on innovation and change with more bureaucracy and more regulation, Arizona is paving the way for new technology and new businesses.”

Sometimes the competitive juices between states or other jurisdictions can spark efforts to attract a new innovation (the Florida governor made a similar remark about getting autonomous car companies to leave California and come to Florida). Depending upon your viewpoint about driverless cars, this is either a good spark or one that invites adverse consequences.

Solid Reasons To Gateway Into Driverless Cars

In the case of autonomous cars, there is a chance that the locale inviting self-driving driverless cars might get a glow of being high-tech embracers and could lead to a veritable stampede of other tech firms clamoring to come into that location.

This might mean added jobs to the region.

It might mean economic expansion as firms related to the tech opt to set up shop and make local investments.

Overall, this can make the authorities of the particular locale look smart, hip, and allow them to catch the wave on a hot innovation that will propel them and their local into the national spotlight.

A potential win-win.

Not Necessarily A Rose Garden To Embrace Public Tryouts

There is a downside though that can also sometimes bite the early adopters of new tech.

Last year, the headlines blared when an Uber self-driving car ran into and killed a pedestrian in Tempe, Arizona that was jaywalking across the street, doing so at nighttime, and the Uber self-driving car did not avoid the crash and nor did the human back-up driver avoid or even react to avert the fatal hit. It was a sad moment and has become a (hopefully) notable cautionary sign about these experimental public roadway tryouts underway.

At the time, I posted right away a preliminary analysis about what I thought might have gone awry, though based on only the sketchy details known, and it turns out that months later when the official crash report came out that I was labeled by the media as “prescient” about my prediction (I had been forewarning that such incidents would happen, including the spate of autonomous car mistakes that occurred and also the dangers of relying upon human back-up drivers).

Some critics that had been otherwise unnoticed about Arizona’s pursuit of autonomous car public tryouts were quick to say that the state was considered the “wild west” of self-driving car usage and the incident highlighted that there was “no sheriff in town” that ought to be closely controlling the efforts.

By the way, for clarification, note that there’s a difference between locales that seek automakers and tech teams to come and do development work, pretty much a desk job kind of activity, and make use of closed track or proving grounds testing, usually apart from the public roadways, versus those locales that open their roadways to self-driving cars as a type of grand experiment for those that live, drive, work, bike, and walk there.

This puts the citizenry at some danger if a driverless car goes awry, and as already indicated, having a human back-up driver is no guarantee that incidents will always be circumvented.

I’ve also been waiting to see a potential backlash on the possibility of the jobs lost side of the ledger, for a particular jurisdiction, namely that if indeed autonomous cars become prevalent there, some worry there will be a loss of driving-related jobs, including ridesharing drivers, cab drivers, limo drivers, delivery drivers, and the like would take a heavy economic toll. I do though quickly point out that we are a long ways from that kind of future since it would require widespread adoption of driverless cars, which we are not even close to yet achieving.

Are Locales Potentially Responsible When Mishaps Or Crashes Occur

Now that I’ve brought you somewhat up-to-speed on the topic of the tradeoff for locales about whether to consider embracing driverless car tryouts or perhaps remaining neutral about them or possibly erecting barriers until satisfied that it is time to let such cars in, let’s get to my related question that can be another humongous factor.

Would a jurisdiction be on-the-hook if an autonomous car mishap or crash occurs within their boundaries?

What especially prompted me to bring up the question at the AutoSens panel was that the Uber incident has gotten a new twist recently when family members of the killed pedestrian launched a $10 million claim against the city of Tempe, asserting that the city had some responsibility in the matter.

You might at first glance be bewildered as to why the city might hold any responsibility. We would all likely assume that Uber would be the mainstay of attention to the matter since it was their car, their human back-up driver, and otherwise, their efforts that contributed to the deadly crash.

In this case, it turns out that the median area from which the pedestrian wandered into the street as a jaywalker had been previously set up as a brick pathway that appears to lead you to a curb point that is not at a crosswalk. Therefore, one might argue that it was an invitation to jaywalk and could be confusing for any pedestrian that might find themselves at that juncture. The filed claim also points out that the city subsequently removed the walkway and put rocks and plants in there instead.

I’m not going to get mired herein in the aspect about the pathway (it will be interesting to see how it plays out in court), since it tangentially is related to my primary theme of this discussion (and could apply to both conventional human-driven cars and driverless cars).

Let’s return instead to the overarching question about the responsibility that a jurisdiction might bear for having invited into their midst the vaunted autonomous car public roadway tryouts.

Here are some considerations:

• Has a jurisdiction sufficiently vetted the inclusion of autonomous cars and taken “warranted” steps to ensure the safety of pedestrians and other drivers regarding the public roadway tryouts?

• Has a jurisdiction put in place ongoing efforts to monitor and track the autonomous car public roadway tryouts, doing so to keep ahead of potential mishaps or crashes?

• Has a jurisdiction established any requirements or constraints about where, when, and other facets of the allowed public roadway tryouts, taking into account the existing infrastructure and populous in their jurisdiction?

• Has a jurisdiction taken a rush-to-judgment about allowing public roadway tryouts and failed to perform its sovereign duties in protecting those within its boundaries?

For a handy legal analysis on such topics, consider taking a look at a paper sponsored by the Transportation Research Board (TRB) and their National Cooperative Highway Research Program (NCHRP) as written by authors at the Santa Clara University School of Law, which is a useful starting point to learn more about these matters.

Conclusion

Some would argue that a jurisdiction should have at top-of-mind the safety of their populous and that in a haste to welcome new innovations they can circumvent the normal rigors that should be observed.

Others say that any jurisdiction that wants to stick with the usual bureaucratic rigors will likely be the last to gain the benefits of new innovations.

It can be a tough choice.

Of course, there are numerous legal protections for jurisdictions such as potential sovereign immunity and statutory limits to what their monetary and other liability might be. Is there a duty of care that might be breached by allowing driverless car public roadway tryouts? Is a laissez-faire approach suitable, or should a more heavy-handed line be used?

This has not yet stood the test of the courts, and nor the court of public opinion.

For politicians and regulators, these initial driverless car tryouts can be a boon or a bust, and though some might think they know the answer to saying avidly yes, or being neutral, or saying to go more cautiously, only time will tell which of those options turned out to be most prudent.