Module 2

MODULE 2
ROBOTS AND CIVIL LIABILITY

2.1 INTRODUCTION

Picture this – you are exiting your front entrance, the newspaper, and espresso in
hand, prepared to begin the day. You enter your car, fasten the seatbelt, press the
“on” button and continue to crack at the daily’s crossword, sipping your coffee,
as you are chauffeured to work by your autonomous vehicle. Ideate this image.
Envision the importance of this ride. Envision the profitability of this, the
increment this indulgence provides you with—an additional hour for work? An
extra hour of introspection? Imagine the advantages to your near and dear ones—
your parents could accomplish their desired, hankered for freedom and liberty,
and you would not need to stress over the youngsters in your family colliding
with the mailbox every-time she or he pulls out of the driveway.

At a higher pedestal of thought, think of the prospect to save lives – seems
beautiful conceptually, doesn’t it? Autonomous vehicles may significantly
decrease the number of road accidents and mishaps in the United States1. As
human blunder has been held as a contributing face for over 90% of all fender
benders in the US2, removing duty regarding driving from the hands of the driver
would fundamentally diminish the number of mishaps that happen each year, and
spare a large number of lives which may otherwise be lost.3

1 NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP’T OF TRANSP., NO. 14-13, PRELIMINARY
STATEMENT OF POLICY CONCERNING AUTOMATED VEHICLES 1 (2013), available at
(www.nhtsa.gov/staticfiles/rulemaking/pdf/Automated_Vehicles_Policy.pdf.), as accessed on 10.07.20
2 NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP’T OF TRANSP., DOT HS-805-085, TRILEVEL
STUDY OF THE CAUSES OF TRAFFIC ACCIDENTS 28 (1979), available at
(https://rosap.ntl.bts.gov/view/dot/25794), as accessed on 10.07.2020
3 In 2011, the US National Highway Traffic Safety Administration (NHTSA) estimates that there were 5,338,000
police-reported car accidents, resulting in over 32,367 deaths. NAT’L HIGHWAY TRAFFIC SAFETY ADMIN.,
U.S. DEP’T OF TRANSP., DOT HS811-753, TRAFFIC SAFETY FACTS 2011 DATA 1 (2013), available at
(https://one.nhtsa.gov/Research/Crash-

To put things in perspective, in the words of Bob Lutz, a former Vice-Chairman

of General Motors, "The autonomous vehicle doesn't drink, doesn't do drugs,

doesn't text while driving, and doesn't engage in road rage. Autonomous cars don't
race other autonomous cars, and they don't go to sleep."4

The concept of an automated vehicle is no longer a figment of fiction. Tech

companies, like Google and Apple to name two, as well as numerous

conventional automakers, have started contributing to advances in autonomous
vehicle technology.5 Intending to metamorphose the experience of driving,

autonomous vehicles moreover have immense potential to enhance road security
and safety and diminish the hazard of damage, death, or peril to commuters.6 A

few of the benefits of automated vehicles, as recorded within the National

Highway Traffic Safety Administration’s (NHTSA) most recent direction for

automated driving frameworks, incorporate a diminish in road mishaps,

decreased traffic jams and traffic congestions, and escalated mobility alternatives
for those with disabilities.7 Hence, it is safe to assume that unmanned and

autonomous automobiles will, in the long run, alter the common man’s perception

of looking at life.

Avoidance/2011%20Crash%20Avoidance%20Research%20Technical%20Publications), as accessed on
10.07.2020.
Given these figures, if autonomous vehicles were in use in 2011 and all accidents to which human error contributed
did not occur, there would only have been 533,800 police-reported car accidents during the year. Assuming that
no other factors influence fatalities in car accidents, 29,130 lives might have been saved through the use of
autonomous vehicles in 2011. Autonomous vehicles also have potential environmental benefits. According to the
NHTSA, autonomous vehicles may conserve fuel by automatically accelerating and braking with the flow of
traffic and eliminating the traffic congestion that crashes cause every day on our roads. The NHTSA also foresees
corresponding reductions in greenhouse gas emissions.
4 Driverless Cars, Alan D. Kaplan & Robert Sanzillo, Driverless Cars, L. J. NEWSL. (2016), (http
://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2016/08/01/driverless-cars/.), as accessed on
10.07.2020
5 Danielle Muoio, 19 Companies Racing to Put Self-Driving Cars on the Road By 2021, BUSINESS INSIDER,,
(https://www.businessinsider.in/finance/19-companies-racing-to-put-self-driving-cars-on-the-road-by-
2021/articleshow/54904972.cms), as accessed on 11.07.2020
6 JAMES M. ANDERSON ET AL., AUTONOMOUS VEHICLE TECHNOLOGY: A GUIDE FOR POLICY
MAKERS, pg. 135, (2016)
7 Automated Driving Systems: A Vision for Safety, (https://www.nhtsa.gov/technology-innovation/automated-
vehicles-safety), as accessed on 15. 07.2020

However, with greater autonomy, comes the scope of greater risks, as well. The
development and evolution of Autonomous Vehicle technology have had its
twists and turns, and its costs, in the form of four major and unfortunate accidents
which have aided highly in the development of law and policy to determine the
liability of manufacturers.

I. The Google Car Side-swipe mishap, February 2016
A minor mishap happened between a Lexus SUV, which was enabled with
Google modified sensors and detectors, and a bus in Mountain View, California.
The Google car, which was carrying a human engineer in it, expected the city bus
would decelerate itself and permit the car to pass by, but the transport proceeded
in the pace it already was moving, and the car ended up sideswiping the bus.8 No
one was injured in the crash, however, in the wake of that collision, Google
implemented 3,500 modern tests and modified its innovation to steer clear of the
mischances of contretemps in the future.9

II. Tesla Autopilot Death, May 2016
In May 2016, a driver lost his life as he allegedly depended entirely on the
autopilot system to drive his Tesla Model S, which was not the use the said
vehicle was envisaged for.10 While on the road, the car slammed into the side of
a truck that was crossing the highway. Upon further investigation, Tesla found
that the autopilot mechanism did not recognize “the white side of the tractor
against a brightly lit sky.”11 In January 2017, the NHTSA completed its inquiry,

8 “Video Shows Google Self-Driving Car Hit a Bus in Silicon Valley”, Joseph Serna,L.A. Times, Mar. 9, 2016.,
(https://www.latimes.com/local/lanow/la-me-ln-google-self-driving-car-bus-collision-20160229-story.html), as
accessed on 11.07.2020
9 “Google’s Chris Urmson Explains Self-Driving Car Crash”, Wayne Cunnigham, CNet, Mar. 11, 2016.,
(https://www.cnet.com/roadshow/news/googles-chris-urmson-explain-self-driving-car-crash/), as accessed on
11.07.2020
10 Joshua Brown, Who Died in Self-Driving Accident, Tested Limits of His Tesla”, Rachel Abrams & Annalyn
Kurtz, N.Y. Times, July 1, 2016., (https://www.nytimes.com/2016/07/02/business/joshua-brown-technology-
enthusiast-tested-the-limits-of-his-tesla.html), as accessed on 11.07.2020
11 “A Tragic Loss” (blog post), Tesla, (https://www.tesla.com/blog/tragic-loss), June 30, 2016, as accessed on
11.07.2020

concluding that there was no fault or flaw in the design or execution of Tesla’s
autopilot system.12 The agency also acknowledged that since autopilot isn't aware
of cross-traffic rules, it requires a driver’s “continual and full observation and
supervision to monitor and oversee the traffic environment,” and the driver had
sufficient time to brake to avoid the accident from happening.13 Nevertheless, the
occurrence got to be a touchpoint for discourses of liability. Was the driver to be
held responsible for not being mindful? Is Tesla liable since the car did not
immediately halt on its own, as it was supposed to? Or is the liability apportioned?
On the off chance that the responsibility is shared, then how should it be divided?

III. The Chevy Bolt Knockdown, January 2018
In January 2018, the very first of the known lawsuits involving an accident of an
autonomous vehicle was filed against a manufacturer of the same.
In the immediate claim, a motorcyclist charged that he bore injuries in his neck
and shoulders after a 2016 Chevy Bolt EV rammed him to the ground in San
Francisco.14 The manufacturer, General Motors (GM), and its subsidiary,
Cruise, have had a license to test autonomous vehicles on California roads since
June 2015.15 The accident, however, happened in December 2017.

The complaint, which is just four pages long, states that although the driver of the
car was seated in the front, however, he was maneuvering the car in self-driving
mode with his hands off the steering wheel.16 The complaint charges that the

12 Nat’l Highway Traffic Safety Admin., ODI Resume, Investigation PE 16-007,
(https://orfe.princeton.edu/~alaink/SmartDrivingCars/TeslaCrash050716/NHTSA_ODI.PDF), as accessed on
11.07.2020
13 Id.; “Government Just Closed its Investigation into the First Autopilot Fatality”, Danielle Muoio & the Reuters,
Business Insider, Jan. 19, 2017., (https://www.businessinsider.in/the-government-will-close-its-investigation-
into-the-first-tesla-autopilot-fatality/articleshow/56671890.cms), as accessed on 11.07.2020
14 Nilsson v. General Motors LLC, No. 4.18-cv-00471-KAW (N.D. Cal. filed Jan. 22, 2018).
(https://www.courtlistener.com/docket/6280461/nilsson-v-general-motors-llc/), as accessed on 11.07.2020
15 “Blame Game: Self-driving Car Crash Highlights Tricky Legal Question”, Ethan Baron, Mercury News, Jan.
23, 2018., (https://www.mercurynews.com/2018/01/23/motorcyclist-hit-by-self-driving-car-in-s-f-sues-general-
motors/), as accessed on 11.07.2020
16 Supra note 16

motorcyclist was moving in the center lane, right behind the car, and right as he
attempted to move ahead and overtake the car, the Bolt abruptly swerved into his
path, leveling him to the ground.17

The claim names GM as the only defendant and does not claim that the Bolt’s
operator contributed to the mishap. The lawsuit is solely, however, made on a
claim of negligence, making the case more like a conventional claim of an auto-
accident than a claim of product liability that asserts that the vehicle had a
defective design. The complaint alleges that General Motors owed a duty of care
towards the plaintiff to, “have its Self-Driving Vehicle operate in a manner in
which it complies with the traffic laws and regulations”, and breached that duty,
“in that its Self-Driving Vehicle drove in such a negligent manner that it veered
into an adjacent lane of traffic without regard for a passing motorist.”18 An
argument on behalf of the plaintiff could be that Bolt floundered to perform as a
reasonable individual would in similar circumstances – hence, essentially, the
lawsuit treats the autonomous vehicle much like an individual, rather than as a
product.

IV. The Arizona Pedestrian Death, March 2018
The very first recorded casualty stemming from an autonomous vehicle, when it
struck a person on foot, happened in March 2018 in a suburb of Phoenix, in the
State of Arizona, the USA – Tempe. The mishap happened when an autonomous
Uber test vehicle hit a 49-year-old lady who was walking
a bicycle over the street at night. The vehicle was moving at 40 miles per hour in
self-driving mode with an operator behind the wheel. The vehicle’s cameras
recorded both the pedestrian’s and the operator’s conduct during the mischance.
It could be said that one of the reasons behind the speedy settlement between the

17 Alan D. Kaplan & Robert Sanzillo, Driverless Cars, Product Liability Law & Strategy, Aug. 2016.
18 Supra note 16

parties may be attributed to the fact that partly, both parties had blame to share –

the pedestrian was wearing dark clothes in the dead of the night, and the backup
driver was seemingly distracted.19

The response of Uber was proactive, as it pulled the entire fleet of its test vehicles

off the streets in all cities after the accident, and the Governor of Arizona, Doug

Ducey, suspended all of Uber’s ongoing tests in his state.20 NHTSA and the

National Transportation Security Board, an independent body known for its

involvement in investigations into plane crashes and train wrecks, began

examining the accident.21And although they gave a clean chit to Uber, letting it

go scot-free, however, the finding did sound the bugle on the extremely high

possibility of the occurrence of such accidents if autonomous vehicle

manufacturers and users do not undertake adequate safety risk assessment

procedures, do not have proper oversight of vehicle drivers and operators, and if

they lack the adequate mechanisms for addressing operators’ automation

complacency – all of which, is a consequence of inadequate safety culture

prevalent in the market standards, as of now22.

An Autonomous car can also be called as a self-driving car or a driveless car. It

is a vehicle that uses a combination of sensors, cameras, radar and artificial

19 “Uber Reaches Settlement with Family of Woman Killed by Self-Driving Car”, Ryan Randazzo, The Republic,
Mar. 29, 2018, (https://www.azcentral.com/story/news/local/tempe/2018/03/29/uber-settlement-self-driving-car-
death-arizona/469278002/); “Uber Reaches Settlement with Family of Victim Killed After Being Struck by One
of Its Self-Driving Vehicles”, Faiz Siddiqui, Washington Post, Mar. 29, 2018.,
(https://www.washingtonpost.com/news/dr-gridlock/wp/2018/03/29/uber-reaches-settlement-with-family-of-
victim-killed-after-being-struck-by-one-of-its-self-driving-vehicles/)
20 “Arizona Gov. Doug Ducey Suspends Testing of Uber Self-Driving Cars”, Ryan Randazzo, Mar. 26, 2018.,
(https://www.azcentral.com/story/news/local/tempe-breaking/2018/03/26/doug-ducey-uber-self-driving-cars-
program-suspended-arizona/460915002/)
21 “After Driverless Uber Hits and Kills Pedestrian, Probe Looks for Broader Safety Insights”, Michael Laris &
Faiz Siddiqui, Washington Post, Mar. 20, 2018.,
(https://www.washingtonpost.com/local/trafficandcommuting/after-driverless-uber-hits-and-kills-pedestrian-
probe-looks-for-broader-safety-insights/2018/03/20/2fe3af6e-2c5e-11e8-b0b0-f706877db618_story.html)
22 NATIONAL TRANSPORTATION SAFETY BOARD Public Meeting of November 19, 2019 (Information
subject to editing) Collision Between Vehicle Controlled by Developmental Automated Driving System and
Pedestrian Tempe, Arizona March 18, 2018 HWY18MH010,
(https://www.ntsb.gov/news/events/Documents/2019-HWY18MH010-BMG-abstract.pdf), as accessed on
15.07.2020

intelligence (AI) to travel between destinations without a human operator. To
qualify as fully autonomous, a vehicle must be able to navigate without human
intervention to a predetermined destination over roads that have not been adapted
for its use.

Companies developing and/or testing autonomous cars include Audi, BMW,
Ford, Google, General Motors, Tesla, Volkswagen and Volvo. Google's test
involved a fleet of self-driving cars -- including Toyota Prii and an Audi TT --
navigating over 140,000 miles of California streets and highways.

For example, Google's self-driving car project, called Waymo, uses a mix of
sensors, Lidar (light detection and ranging -- a technology similar to radar) and
cameras and combines all of the data those systems generate to identify
everything around the vehicle and predict what those objects might do next. This
happens in fractions of a second. Maturity is important for these systems. The
more the system drives, the more data it can incorporate into its deep
learning algorithms, enabling it to make more nuanced driving choices.

TORIOUS LIABILITY IN C ASE OF AUTONOMOUS CARS AND
AUTOMOBILES
There are three basic theories of Tort liability that affects the driver- traditional
negligence, no-fault liability and strict liability.

Traditional Negligence: Driver is held liable for harms caused when reasonable
care was not taken while in operation of the vehicle

No-Fault: Crash victims are not permitted to sue the driver of the vehicle, unless
the injuries resulting from the crash are of certain severity. Victims are
compensated through their own insurance.

Strict Liability: Applies for abnormally dangerous or “ultra hazardous” activities.

For good and bad, reasonableness is a fairly vague concept. In the day-to-day
resolution of automobile crash claims, the operation of the traditional system of
liability for negligence has been influenced by the mandatory-insurance system.
Insurance adjusters have adopted informal rules to effectively allocate fault (e.g.,
drivers who rear-end other vehicles are presumed to be at fault). These have
minimized more general analyses of reasonableness and causation in most
automobile crash cases, which are resolved without formal litigation. So rather
than undertaking a generalized analysis of whether a driver is negligent and
therefore liable for a crash—a potentially difficult and open ended inquiry—an
insurance adjuster is likely to refer to a simpler set of rules to determine who owes
what to whom “The law of negligence was made to lean heavily upon the much
simpler traffic law”).
Twelve states use an alternative system, called no-fault, for automobile-crash
litigation and insurance. In these states, automobile crash victims are not
permitted to sue other drivers in the tort system unless their injuries reach a certain
degree of severity, called a threshold.6 Instead, victims are directly compensated
for their losses through their own insurance. Proponents of this system argued
that it would eliminate the difficult determination of who, if anyone, was at fault
for a particular crash, ensure that compensation would be available to victims
regardless of whether anyone was legally at fault, and generally reduce litigation
and lawsuits.

A rare theory of liability that might also affect operators of AV technologies is
strict liability for abnormally dangerous or “ultra hazardous” activities. The
rationale for this type of liability is that actors involved in highly unusual
activities are more knowledgeable about the risks that such activity entails and

should consequently bear the associated costs regardless of whether they are
legally at fault for the crash. This theory of liability may be particularly relevant
to liability of drivers of early AVs. Victims of AV-related crashes may sue the
owners or drivers of the vehicles and argue that the operation of AV technologies
constituted an ultra hazardous activity and the operators should therefore be
strictly liable for any crashes that occur, regardless of whether they were
negligent.

MANUFACTURER’S LIABILITY
State tort law can then supplement the federal regulations in important instances,
yielding a comprehensive regulatory approach. Within this legal framework, a
regulatory-compliant autonomous vehicle would subject the manufacturer to tort
liability only for crashes caused by malfunctioning physical hardware (strict
products liability); malfunctions of the operating system due to either
programming error (same) or third-party hacking (strict liability again, with an
important caveat); the manufacturer’s failure to adopt a reasonably safe design or
to provide adequate warnings for ensuring safe deployment of the vehicle (an
ordinary products liability claim); or the manufacturer’s failure to treat consumers
and bystanders equally when designing the vehicle and its operating system (an
ordinary negligence claim). A manufacturer would also be subject to tort liability
for not complying with the federal regulations (negligence per se). The potential
liabilities would not be overly uncertain. Autonomous vehicles can be regulated
in a manner that ensures reasonable safety without impeding the development of
this life-saving technology

Once the operator has properly deployed an autonomous vehicle, the
manufacturer becomes primarily responsible for the vehicle’s driving
performance. For centuries, tort law has required manufacturers and other product

sellers to ensure that products perform in a reasonably safe manner. A
manufacturing (or construction) defect exists “when the product departs from its
intended design even though all possible care was exercised in the preparation
and marketing of the product.”68 Defects of this type occur for different reasons.
Materials or component parts of the product can be contaminated or otherwise
manufactured in a flawed manner due to an error in the production process; the
product can be improperly assembled or constructed; or the product can be
improperly packaged. Because these defects depart from design specifications,
they exist only in aberrant products that would not satisfy quality-control
standards. A commercial distributor of the defective product would be subject to
strict tort liability in most states.

A malfunction would occur if a coding error caused the operating system to crash,
resulting in a crash of the autonomous vehicle. The coding error prevented the
operating system from performing its manifestly intended function of executing
the dynamic driving task, subjecting the manufacturer to liability for the crash.
“The cause of action is one involving true ‘strict’ liability, since recovery may be
had upon a showing that the product was not minimally safe for its expected
purpose—without regard to the feasibility of alternative designs or the
manufacturer’s ‘reasonableness’ in marketing it in that unsafe condition.”
The malfunction itself is sufficient proof of defect. Under the rule of strict
products liability, the manufacturer is responsible for the physical harms caused
by a defect, even if it “has exercised all possible care in the preparation and sale
of [the] product.”

This Chapter shall focus on the following facets of tortious liability of unmanned
and autonomous automobile manufacturers, namely:

● Tortious Liability of the automobile manufacturer
● Vehicle ownership and vicarious liability

● Duty of care vis-a-vis fault-based liability
● Enterprise based liability

2.1.1 Understanding Autonomous automobiles: Importance of
predetermining manufacturer’s tort costs in Autonomous Vehicles
The functionalities of a vehicle broadly fit into five categories:

• no-automation,
• function-specific automation,
• combined function automation,
• restricted self-driving automation, and
• full self-driving automation.23
No-automation is the kind of driving standard that is the convention of operating
a vehicle in the present time: the driver has full control over maneuvering, speed,
and other modalities. Function-specific automation, combined function
automation, and limited self-driving automation are different levels of
automation, extending from antilock braking systemization to adaptive cruise
control.24 Full self-driving automation, the most advanced of these categories, is
the type of functionality envisaged ideally in an autonomous vehicle. These
vehicles are devised to execute all safety-critical automotive functions and
monitor roadway conditions for an entire trip. Hence, they essentially supplant
the driver by self-guiding their operations. This, in turn, disenthralls the
commuter of the time that would have otherwise been spent in manually driving
the vehicle, and aids people with less mobility, and overall, minimizes the human
risk of committing errors while steering a vehicle manually – thus, increasing
road safety and security. However, for all the numerous benefits that they may
bless us with, autonomous vehicles do raise several issues that have to be handled

23 NHTSA, supra note 1-3
24 U.S. Department of Transportation Releases Policy on Automated Vehicle Development, NHTSA,
(http://www.nhtsa.gov/About+NHTSA/Press+Releases/U.S.+Department+of+Transportation+Releases+Policy+
on+Automated+Vehicle+Development.), as accessed on 11.07.2020

by lawmakers and legal researchers and scholars. Existing laws can satisfactorily

handle mishaps on the road, including the rudimentary autopilot features that are

as of now found in a few vehicles.25 Usually, a person sitting behind the steering

wheel carries an onus to exercise rational logic and has a duty of reasonable

caution and care to avoid accidents. However, there arises a pertinent uncertainty

about how such an obligation may be imposed on a “driver” who would otherwise

be incapable to intervene in the operation of a vehicle which is automated.26

Although, the existing traffic laws take into consideration that automobiles have

separate statutory definitions of “drivers,” “owners,” and “operators”, however,

the transformative alteration in the automobile industry in the coming times — a

major shift from constrained autopilot to complete automation — may smear the

lines between these statutory terms and eventually, make this demarcation

between the terms redundant and irrelevant. When the doors of purchase of

autonomous vehicles are opened to the general public, unanticipated issues of law

will emerge, and manufacturers will require those complications to be laid to rest

at the earliest.27 Issues such as safety regulations, cybersecurity, insurance28, and

the risk of tortious liability29 have to be pondered upon and resolved before

autonomous vehicles are released out in the open world. Although the vision

25 Bryant Walker Smith, Automated Vehicles Are Probably Legal in the United States, 1 Texas A&M Law
Review, Volume 1, Issue 3 (2014), (https://scholarship.law.tamu.edu/lawreview/vol1/iss3/3/), as accessed on
13.07.2020
26 Amy Levine, Can I Be Held Negligent If My Self-Driving Car Causes an Accident?, Insurance Journal,
(https://www.insurancejournal.com/magazines/mag-
features/2015/04/20/364411.htm#:~:text=Any%20harm%20that%20results%20for,strict%20liability%20would
%20not%20apply.), as accessed on 11.07.2020
“Unlike an airplane operating on autopilot mode, which still requires the pilots to account for unanticipated
objects in the sky and regain control of the aircraft when necessary, the ‘operator’ of this model of self-driving
car would not even have the opportunity to intervene in the driving of the vehicle.”

27 The creator of Google’s autonomous vehicle technology, David Hall had, “described a PowerPoint presentation
containing the automaker’s analysis of self-driving-car technology. ‘It was about 20 pages long,’ he says, ‘and the
last 10 pages were “What’s going to happen when we get sued?” Detroit doesn’t want to start making self-driving
cars without legal clarity. And legal clarity will not arrive until self-driving cars test the law.”, Adam Fisher, Inside
Google’s Quest to Popularize Self-Driving Cars, Popular Science, (http://www.popsci.com/cars/article/2013-
09/google-self-driving-car.), as accessed on 11.07.2020
28 Robert W. Peterson, New Technology—Old Law: Autonomous Vehicles and California’s Insurance
Framework, 52 Santa Clara Law Review. 1341, 1355–62 (2012)
29 Kyle Graham, Of Frightened Horses and Autonomous Vehicles: Tort Law and Its Assimilation of Innovations,
52 Santa Clara Law Review. 1241, 1246 (2012)

envisaging autonomous motor vehicles is to neutralize road accidents and to
ensure enhanced road safety standards, however, it is a given that there always is
a chance that accidents and mishaps would happen and, thus, liability would also
be assessed in such an occurrence. This postures a conundrum for car
manufacturers: on one hand, they endeavor to create autonomous vehicles, but on
the other hand, “liability concerns might cause them to delay generation and
rollout.”30 Car crashes result from several factors – they could either be
technological in nature, or environmental, or human-related, or an amalgamation
of the three. As per a study by the U.S. Department of Transportation, the 8
primary factors contributing to the majority of fatal car crashes between 2004 and
2008 in the USA were: traffic controls, speed and route type, road characteristics,
weather impacts, traffic flow, crash characteristics, road classification, and
persons.31
Taking into consideration the instances of Google or Toyota, inter alia, each of
whom has invested billions of dollars in research, development, and manufacture
of autonomous vehicles - it is essential to take into consideration that such
companies and corporate establishments have an onus to venture and create
cutting-edge innovation in user-friendly and aesthetically satisfying
characteristics. The enormous amounts of assets and capital at stake intensify the
interest in guaranteeing an appropriate and rational cost of tort liability for the
manufacturers. Instating a robust and reliable framework for ascertaining the
tortious liability would safeguard the rights of the manufacturers by ensuring that
they would be liable only to the extent that their vehicles (and/or the technology
installed in such vehicles) have malfunctioned and have caused a crash. With a
dependable and definitive framework in place, companies would be able to

30 Kyle Graham, Of Frightened Horses and Autonomous Vehicles: Tort Law and Its Assimilation of Innovations,
52 Santa Clara Law Review 1241, 1246 (2012); Stephen P. Wood et al., The Potential Regulatory Challenges of
Increasingly Autonomous Motor Vehicles, 52 Santa Clara Law Review 1423 (2012)
31 JENNY GUORINO & AMRUT CHAMPANERI, BUREAU OF TRANSP. STATISTICS, FACTORS
INVOLVED IN FATAL VEHICLE CRASHES (2010), (https://rosap.ntl.bts.gov/view/dot/6124 ), as accessed on
11.07.2020

choose whether to invest in autonomous vehicles. This would “allow more

technologies to come to the market faster.”32

A common fear that grips the manufacturers of autonomous and unmanned

vehicles is that if the emergency alarm systems don’t work as they are required

to, a humongous sum of risk and liability for injuries is likely to alight upon

them.33 Since users would be lacking in experience with a novel product like an

autonomous vehicle, this reservation on the part of the manufacturers is warranted

to a very large extent. Hence, irrespective of what the actual cause might have

been, there is an exceedingly high possibility that users may be quick to shift the

blame on the new technology for any mishaps or accidents that may occur.

It must however not be forgotten that an autonomous vehicle, in any case, is

purposed to procure the control of the vehicle out of the hands of the driver; thus,

it begs to be asked here, does a driver ought to be held liable for the harm caused

by a vehicle driving autonomously? Several hypotheses have been raised to

address the issue at hand, including determining the liability of the driver/operator

for the car’s activities through the doctrine of vicarious liability34 and

distinguishing the categories of crashes for which the driver or the producer

would be liable to varying degrees.35 Irrespective of the regime of liability

32 K. Krasnow Waterman & Matthew T. Henshon, Imagine the Ram-If-Ications: Assessing Liability for Robotics-
Based Car Accidents, SciTech Lawyer, Spring 2009, at 14.
33 Supra point 10
34 One of the most creative theories posited regarding liability for autonomous vehicles is to hold the driver liable
for the car’s actions through the theory of vicarious liability, a theory generally reserved for employer-employee
relationships. The employer is vicariously liable for the actions of his employee done within the scope of the
employee’s employment.
According to the Restatement (Third) of Agency:
“Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another
person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and
the agent manifests assent or otherwise consents so to act.”
“An employer is subject to liability for torts committed by employees while acting within the scope of their
employment.”
In the proposed relationship between the driver and the autonomous vehicle, the vehicle would be the driver’s
agent. As such, the driver would be vicariously responsible for the actions of the vehicle. The driver, as employer,
would be liable for the actions of the autonomous vehicle. To extrapolate a little further, an autonomous
automobile is very much like a driver hired by the owner. It is doing the owner’s bidding, and if the car violates
the rules of the road and causes an injury, perhaps the owner or the one instructing the automobile should be liable
as they would be for a similar injury caused by the conduct of an agent.
35 The theory examines different driving scenarios (the Distracted Driver, the Diminished Capabilities Driver, the
Disabled Driver, and the Attentive Driver), and argues that tort liability should depend, “on the nature of the driver

eventually chosen, the liability of driver-negligence must be severed from the
design defect of the autonomous vehicle.
There are two circumstances in which the driver should be held liable for
negligence:

• One, the maintenance of the vehicle.
• Two, emergencies and exigencies.
To begin with, first, it is indeed true that although the driver isn't “steering” the
wheels of the car, however, the car is still under the direct care and supervision
of the driver. As with “tires and brakes, owners have an onus for maintenance”
of the autonomous vehicle.36 Thus, for the proper functioning of an autonomous
vehicle, the owner/operator shall have to ensure that the vehicle is properly
maintained and its functioning is monitored accordingly. “Once an
owner/operator is or has been aware that the vehicle/automobile is not acting as
it should, the owner may be considered to be negligent in proceeding to drive the
car until the issue is sufficiently addressed.”37 Also, second, particularly with
autonomous automobiles, the driver/operator may also be held liable for taking
over the control of the vehicle in exigent and calamitous situations.38 If in the said
set of circumstances, the driver/operator is unable to take control, or if for some
reason, takes control ineffectually – then, it shall be held to constitute negligence,
as well.
But, at this point, the issue comes to the cardinal address - Why discuss Tort law,
at all?

2.1.2 Why Tort Law.

and the ability of that person to prevent the accident [in an autonomous vehicle].” Jeffrey K. Gurney, Note, Sue
My Car Not Me: Products Liability and Accidents Involving Autonomous Vehicles, 2013 University of Illinois
Journal of Law, Technology & Policy, (https://works.bepress.com/jeffrey_gurney/1/) as accessed on 11.07.2020
36 Supra note 10
37 Id.
38 Will Knight, Driverless Cars Are Further Away Than You Think, MIT TECH. REVIEW,
(https://www.technologyreview.com/2013/10/22/175716/driverless-cars-are-further-away-than-you-think/), as
accessed on 11.07.2020

It is a well-established fact that both Tort law and Criminal law have crucial roles
to play in cases of automobile accidents.39 As automobile accidents are one of the
most unavoidable causes of harm that society comes across on a daily basis, an
address of the foremost significance comes to the intellect of legal jurists and
scholars – should there be a push of criminal nature or of tortious liability when
it comes to ascertaining liability in cases of mishaps caused by autonomous
automobiles.

“the law gives significant consideration to anticipating that slaughter,
apportioning misfortunes, and rebuffing perilous drivers. Both tort and
criminal law give an instrument for endorsing unsafe drivers and
preventing future crashes. Both can apply to the same event — any
given crash is possibly criminal, tortious, both, or not one or the other.
In any case, tort and criminal law force diverse sanctions concurring to
diverse standards” 40

Scholars have recognized a few explications for why understanding vehicular
accidents as tort-like is a better-off approach vis-à-vis understanding them as a
crime:

• First, automobiles are fundamentally dangerous and concomitantly crucial
and indispensable.41 Hence, “to the degree that traffic crashes are seen as
inevitable costs of a necessary activity, tort’s regime of loss allocation is
more fitting than criminal law’s prohibitions.”42

• Second, often, crashes result from narrow escapes involving simple bad
luck.43 As a result, criminal law’s conceptual bedrock of moral culpability

39 Noah M. Kazis, Comment, Tort Concepts in Traffic Crimes, 125 Yale Law Journal 1131 (2016)

40 Id. Despite clear distinctions between tort and criminal law generally, in the vehicular accident context “the
line between tort and criminal law is blurring, as criminal law takes on significant features of tort doctrine.”
41 GUIDO CALABRESI, THE COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 18–20
(1970)
42 Id.
43 Tom Baker, Liability Insurance, Moral Luck, and Auto Accidents, 9 THEORETICAL INQUIRIES L. 165,
167–70 (2008)

isn't applicable, appropriate, or suitable when differences of a few inches
or seconds cause a collision.44

2.2FUNDAMENTAL TORT LAW PRINCIPLES

In a generic case of automobile accident litigation, the two most perused liability
doctrines contested by the complainants are strict liability and negligence45.
Notwithstanding whether there was incurrence of an actual fault, in Tort law,
strict liability equates fault with the party that caused the injury46. Usually, strict
liability contends in claims that involve product liability47 or unusually unsafe
activities48. Be that as it may, many times, courts have steered away from
applying the doctrine of strict liability, alternatively applying a more nuanced
consideration which is closer to the negligence standard.
Most of the tort law is governed by negligence49, which equates the practicality,
reasonableness, and rationality of the actions of the defendant to a certain
standard of care50. To succeed in a negligence lawsuit, the plaintiff must have to
show a failure on the end of the defendant to employ the care that a prudent and

44 Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal
Law, 122 U. PA. L. REV. 1497, 1513 n.64 (1974)
45 Gary E. Marchant & Rachel A. Lindor, The Coming Collision Between Autonomous Vehicles and the Liability
System, 52 SANTA CLARA LAW REVIEW, 1321, 1322 (2012) (assessing legal liability as a potentially limiting
consideration for manufacturers of autonomous vehicles).
46 Id.
47 Greenman v. Yuba Power Prods., 377 P.2d 897, 901 (Cal. 1963)
“According to the, “Restatement (Third) of Torts: Product Liability”, manufacturers of defective tools are liable
to injured individuals who show that they were using the product as intended, even if manufacturers were not
negligent in making the tools. Hence, to establish the manufacturer’s liability it was sufficient that plaintiff proved
that he was injured while using the power tool as it was intended to be used as a result of a defect in design and
manufacture of which plaintiff was not aware that made it unsafe for its intended use.”
48 RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM, Ch. 4,
scope note (AM. LAW INST. 2005)
49 Kenneth W. Simons, The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives, 17 WIDENER
L.J. 719, 722 (2008).
50 RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM, Section
7

reasonable individual would exercise in similar circumstances, keeping in mind
the four basic components of tortious liability of negligence, namely:

• Duty,
• Breach,
• Causation, and
• Damages51.
Be that as it may, principles found under the scope of negligence at times permit
plaintiffs to prevail without although they may not have explicitly proved each of
the components52. Besides, plaintiffs can attempt to recover not only from
individuals but also from manufacturers, franchisors, trade associations, or entire
industries 53. Hence, in cases of redressal against alleged tortfeasors, when the
tortious conduct in question may include multitudinous parties involved, the
broader theories of recovery may be applicable to seek redressal.

2.2.1 Enterprise Liability Theory
The Enterprise liability theory mandates that if individuals are participating in a
shared enterprise, then they would be held as joint tortfeasors for any conduct
arising from such collective participation54. In other words, distinct and
independent individuals and organizations can be held culpable for tortious
liability borne out of shared activities. Hence, like other doctrines by which
tortious conduct can be extrapolated, the basic premise of enterprise liability is
based on the presupposing understanding that courts may ascertain liability, even
in cases where the plaintiff(s) have not been able to pinpoint the fault on the part

51 Negligence, BLACK’S LAW DICTIONARY (10th ed. 2014).
52 Under the theory of res ipsa loquitur, for example, “the mere fact of an accident’s occurrence raises an inference
of negligence that establishes a prima facie case.” Res Ipsa Loquitur, BLACK’S LAW DICTIONARY (10th ed.
2014).
53 Victoria C. Dawson, Who Is Responsible When You Shop Until You Drop?: An Impact on the Use of the
Aggressive Marketing Schemes of “Black Friday” Through Enterprise Liability Concepts, 50 SANTA CLARA
L. REV. 747, 751–52 (2010).
54 Naomi Sheiner, Comment, DES and a Proposed Theory of Enterprise Liability, 46 FORDHAM L. REV. 963,
974 (1978)

of the defendant(s). Enterprise liability postulates that activities, which a

defendant party would have engaged in, and that are reasonably foreseeable,
however, potentially perilous as well, would create an obligation on such a party
to bear the costs they engender55.

It is necessary to take note that the goal of personal injury law in the enterprise
liability theory is to form, “a more comprehensive and more adequate means of

production for all victims of personal injuries without placing too overwhelming
a burden on enterprise or any other section of the social group.”56 After an
automobile accident, there are several potentially liable parties involved in

Tortious litigation – with the vehicle’s owner and operator both principal to the
issue of tort liability.57

The concurrent upsurge of ride-sharing and self-driving vehicles has made a

distinctively unique amalgamation of conventional carmakers, pioneering tech
enterprises, and start-up TNCs58. These organizations and establishments
concomitantly share financial assets and data and information facilities with each

other, while also rivaling for a higher market share and novel advances in

technology and innovation. Therefore, such organizations and corporate
behemoths which are financially responsible and affluent and which perform in a

55 Guido Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Cost, 78 HARV. L.
REV. 713, 716 (1965)

“Enterprise liability entails the notion that losses should be borne by the doer[s], the enterprise, rather than
distributed on the basis of fault that results from individual negligence.”
56 Leon Green, The Individual’s Protection Under Negligence Law: Risk Sharing, 47 NW. U. L. REV. 751, 775
(1953)
57 Robinson v. ReedPrentice Div. of Package Mach. Co., 403 N.E.2d 440, 443 (N.Y. 1980)

“There exist many other parties with potential tort liability. As a vehicle’s manufacturer may be entirely
responsible for a self-driving vehicle’s functionality, products liability is a relevant body of tort law. A products
liability claim grounded in defective design may be available against the manufacturer of a self-driving vehicle.
A defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably
contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose
utility does not outweigh the dangers inherent in its introduction into the stream of commerce. Accordingly, a
manufacturer may be held strictly liable for injuries that result from a defectively designed product. Where a
plaintiff is injured as a result of a defectively designed product, the product manufacturer or others in the chain
of distribution may be held strictly liable for those injuries.”
58 Trans-National Companies

consequential capacity in constricting vehicle ownership liability, thereby largely
eliminating the importance of driver/operator input, should be held legally
accountable for tortious conduct, appropriately. In this way, the doctrine of
enterprise liability is material to the understanding of the Tortious liability of
autonomous vehicles.

Deterring undesirable behavior and compensating casualties legitimize
undertaking obligation convention. Venture liability holds businesses entirely
obligated for dangers related to their schedule operations; hence, it is related to
the teaching of respondeat superior59. Under the principle of respondeat superior,
managers bear the dangers of employees’ careless conduct which will harm
blameless casualties inside the scope of business. TNCs, and other potential
commercial administrators of self-driving vehicles, lock-in in commerce with
known dangers. Subsequently, these companies ought to bear the hazard that their
self-driven vehicles—whether rented, leased, or something else operated—may
cause mishaps. Like employer-employee connections, these dangers are a portion
of typical trade operations. Beneath vehicle codes that broadly characterize
“operation,” self-driving vehicle administrators ought to be held obligated for
their vehicles’ conduct acting inside the scope of the vehicle’s part.

Since the premise of enterprise liability is based on the involvement of a party(-
ies) in activities, instead of incurrence of fault by the said party(-ies), it forms the
conceptual foundation for strict liability regimes primarily discharged for product
liability and inherently perilous activities. However, on paper, autonomous
unmanned driving is considered more secure and safe than conventional manned
driving60, of now which is considered a typical, commonplace activity.

59 “Let the chief answer. A superior is responsible for any acts of omission or commission by a person of less
responsibility to him.”, Black’s Law Dictionary, (https://thelawdictionary.org/respondeat-superior/)
60 Chris Martin & Joe Ryan, Super-Cheap Driverless Cabs to Kick Mass Transit to the Curb, BLOOMBERG:
TECH. (Oct. 24, 2016, 7:01 PM), https://www.bloomberg.com/ news/articles/2016-10-24/super-cheap-driverless-
taxis-may-kick-mass-transit-to-the-curb [https://perma.cc/A5KR-UWQK]

Furthermore, autonomous vehicles may be inculpated even in accidents where a
design or manufacturing defect is missing. Since computer systems and
technological frameworks are incapable of committing negligence under
conventional common law and statutory legalities of reasonable care, hence, the
doctrine of strict liability is a practical approach to ascertaining the liability of
autonomous vehicles. In this way, it is consistent to ascribe duty to a third party
that may not have a direct correlation to the commissioning of the negligent act,
however, which is a holding enterprise or manufacturer of the vehicle or which is
in any other way vicariously liable for the operation or control of the vehicle.61

The principles governing automobile ownership statutes, which holds owners
vicariously liable for negligence, fall in line with the vicarious nature of enterprise
liability. The objective of the law as it stands is to fiscally hold accountable
defendants and to make them pay for the injuries sustained by the innocent
sufferers in case of an accident; the fundamental principle is that an individual
who gives the responsibility of a vehicle to another individual is considered to
also have ample assets to pay for the damages in case of any mishap caused, in
part or in whole, by the malfunctioning of such vehicle. Hence, generally, there
exists a secure policy-based principle pertinent to autonomous vehicles in cases
where deep-pocketed TNCs command vehicle ownership, viably functioning as
leasing or rental companies. A strict and vicarious liability regime established in
the standards of the concept of enterprise liability is warranted for since
businesses involved in establishing networks of autonomous automobiles —
whether they are ride-sharing, automotive, or technology enterprises — are
established enough to spread their losses methodically. By diffusing the losses,
these businesses can satisfactorily bear the baggage of the burden of their

61 Chris Martin & Joe Ryan, Super-Cheap Driverless Cabs to Kick Mass Transit to the Curb, BLOOMBERG:
TECH. (Oct. 24, 2016, 7:01 PM), https://www.bloomberg.com/ news/articles/2016-10-24/super-cheap-driverless-
taxis-may-kick-mass-transit-to-the-curb [https://perma.cc/A5KR-UWQK].

operations. Furthermore, by altering and adjusting the rates, these companies can
stay profitable, and simultaneously, operate and innovate their businesses.62

2.2.2 Duties of Care: Fault-based Liability

According to the Black’s Law Dictionary, “Fault”, in Civil law, is an improper
act or omission, injurious to another, and transpiring through negligence,
rashness, or ignorance63. The Oxford reference states that a fault-based liability
is the type of liability in which the plaintiff must prove that the defendant’s
conduct was either negligent or intentional64.

The actions of a driver or an operator may constitute civil negligence, even
without reaching the higher yardstick of criminal conduct. Although a small
fraction of jurisdictions observes a no-fault framework for the purposes of
determination of insurance, most jurisdictions rely upon a fault-determination
model whilst designating the liability.65 Hence, it is essential to recognize the
relevant duty that a vehicle’s driver owes and the aspects that are necessary to be
considered in establishing whether there has been a breach of duty.66This duty
includes a driver’s obligation to account for dangers from the surrounding
weather, road, traffic, and other ancillary conditions. To this end, a driver is
“chargeable with knowledge of what a prudent and vigilant operator would have
seen, and is negligent if he fails to discover a vehicle which, or a traveler whom,

62 Sarah E. Williams, Comment, Florida’s Dangerous Instrumentality Doctrine, 25 STETSON L. REV. 177 (1995)

(describing vicarious liability and the development of Florida’s dangerous instrumentality doctrine and suggesting

a judicial framework for automobile accident cases under the doctrine).
63 Fault, Black’s Law Dictionary, (https://thelawdictionary.org/fault/), as accessed on 12.07.2020
64 Oxford Reference, (https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095812106), as

accessed on 25.09.2019
65 Gary Wickert, Commentary:
The Failure of No-Fault Insurance, CLAIMS J.,

http://www.claimsjournal.com/news/national/2016/05/12/270759.htm [https://perma.cc/HK97-Z3SY], as

accessed on 25.09.2019
66 Negligence, Black’s Law Dictionary, (10th Edition, 2014)

he could have discovered in time to avoid the injury in the exercise of reasonable
care.”67
It is imperative to note that in the majority of jurisdictions around the world,
there lies an onus of prudence and a duty of care on drivers and bystanders who
allege negligence over the manufacturers. Although the law does accept a certain
level of risk, as is evident from references to legislations, the judgments
pronounced by Courts, and from the legal principles of reasonableness, prudence
practicability, and due care – however, there is no standard of how such level of
risk should be determined. Therefore, the approach of statutes and case laws
entails a relative approach which emphasizes more on the need for context than
of certainty. Notwithstanding, this approach necessitates a fault-based
determination of driver or operator conduct, which goes without saying is of high
importance whilst considering the determination of liability of vehicles with
autonomous driving systems in place. Where, on one hand, a few jurisdictions
have a fault-based regime in place, others employ a framework that limits the
potential to sue alleged negligent operators and drivers.

2.2.3 Tort law and Innovation
Tort law addresses the obligations of reasonable care that parties owe. However,
tort law goes way beyond merely attributing liability; it also necessitates cost-
spreading68. Hence, the necessity to recognize well-financed defendants with the
financial means to assuage the sufferers of an automobile accident is an important
policy consideration69. Notwithstanding tort’s settled foundations and standards,

67 Pike Taxi Co. v. Patterson, 63 So. 2d 599, 602 (Ala. 1952)
68 Owen v. City of Independence, 445 U.S. 622, 657 (1980)
69 Nowak v. Nowak, 394 A.2d 716, 723 (Conn. 1978)

there is an implicit uncertainty in how the law applies to develop advances in
automation70.

• First, although early claims relating to innovation may not bear a
resemblance to future claims, the law emerging from these early cases
endures even as the risks of perils associated with technology keeps on
evolving. And, to better understand this paradigm shift, let us take into
consideration the creation and development of automobiles over the
years – early automobile-related claims barely take after modern-day
automobile litigation; there hardly is any correlation between how
courts would adjudicate early claims and future claims or the tests that
would be employed by such courts to determine the liability in both the
matters. An affirmation of the differentiation between the old and the
new legal jurisprudence of the subject matter at hand is evidenced from
the novel approaches to the theories of negligence, nuisance, strict
liability, and vicarious liability that jurists and legal scholars have
propounded – a true turn-of-the-century transition of the understanding
and interpretation of the application of tortious liability.

• Second, it is a near impossibility to anticipate accurately the risk profile
of the novel technology of autonomous vehicles, until the consumers
and the market in itself adopt to it. In this way, courts would suo-motu
gravitate towards form-based analogies. Case on point, for ground
damage, the nineteenth-century hot air balloon operators were subject
to the rule of strict liability71. This principle was subsequently extended
to airplanes since both hot-air balloons and airplanes had in-flight
abilities and since both carried the potential of causing damage to life
and property if they malfunctioned. And, although commercial aviation

70 Kyle Graham, Of Frightened Horses and Autonomous Vehicles: Tort Law and Its Assimilation of Innovations,
52 SANTA CLARA L. REV. 1241 (2012)
71 Id.

became a lot more safe and common in usage, however, the severity of
the principle of strict liability persisted. This goes on to portray that the
inceptive analogies in many case scenarios could be myopic and thus
may deliver rules that are unforgiving and austere and hence, they
eventually require a re-evaluation72. At last, courts often erroneously
accept the contention that adopters accept the risk of modern innovation
–the invention of automobiles illustrates this facet of “blaming the
user”. During the early automobile period, courts used to incorrectly
blame speeding for road mishaps, even when the collision was caused
by obvious mechanical failure, a common event at the time73. It is of
utmost importance to take into consideration the conundrum here –
there lies a major difference in the liability of the operator/driver of the
vehicle (the “user”) and the manufacturer of the vehicle, in case of an
accident involving such autonomous vehicle. In a case scenario similar
to the discussion at hand, it is extremely crucial to investigate and delve
deep into the nuances of every accident involving an autonomous
vehicle, and not make blanket considerations of the fault falling
exclusively with the user (as was a norm earlier) because there can be
instances where the user would have exercised a reasonable amount of
care and diligence while maneuvering the vehicle, however, the fault
would have been technological or mechanical and outside the control
of the user – in such a scenario, the liability falls on the manufacturer,
since the automation of the vehicle was the responsibility and onus of
the manufacturer, solely. It would be extremely undone and a total
vitiation of the principles of justice, equity, and good conscience if the
user is held liable for the errors of the manufacturer.

72 Carpooling Liability?: Applying Tort Law Principles to the Joint Emergence of Self-Driving Automobiles and
Transportation Network Companies, Jacob D. Walpert, Fordham Law Review, Volume 85, Issue 4, (2017),
(https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5309&context=flr)
73 Brouse v. United States, 83 F. Supp. 373, 374 (N.D. Ohio 1949)

2.2.4 Negligence vs. Product Liability

In the days to come, courts will be confronted with appropriating an acceptable
and reasonable standard of care for assessing whether an autonomous-vehicle
manufacturer is subject to be held liable for a road accident. Customarily, mishaps
and accidents are evaluated from the focal point of driver-negligence, with the
potential for product liability arising only when a defect or deformity within the
car causes the accident or likely exacerbates the risk of incurrence of injuries. A
producer has never had an obligation “to plan an accident-proof or fool-proof
vehicle”74 Many legal scholars are of the opinion that the liability of car accidents,
whether due to an error on the end of the operator/driver or due to miscalculation
by the autonomous vehicle itself, should continue to be governed by the principles
of “negligence”. They clarify that these circumstances vary from conventional
product liability claims since huge safety gains are associated with autonomous
automobiles: “Holding computer-generated torts to a negligence standard will
result in an improved outcome; it will accelerate the adoption of automation” and
subsequently diminish the risk of the likelihood of the occurrence of the
accident75. A negligence-assessment would specifically probe into whether the
decision or the act of the autonomous vehicle, which paved the way for the
accident to ultimately occur, happened because of a lack of due care in the
operation of the vehicle, or not. For instance, in the case scenario of the accident
between Google’s autonomous vehicle and the bus spoken of in the last chapter,
the scrutiny had been whether it was callous and negligent on the end of the
autonomous car to merge head-on into the traffic, given the speed in which the

74 Larsen v. Gen. Motors Corp., 391 F.2d 495, 502 (8th Cir. 1968)
75 Brian Fung, The Big Question About Driverless Cars No One Seems Able to Answer, Wash. Post, Feb. 17,
2016

bus was pacing, the distance between the bus and the car right in front of it, and
other such considerations76.

2.2.5 Alternative Liability Theories

The inclination to compensate victims of accidents involving autonomous
vehicles without chilling the progression of this life-altering technology has
driven legal luminaries to examine various alternatives to conventional tort
liability. Two commonly considered alternatives are those of, “no-fault
insurance”, and that of a “compensation fund”. Both schemes can be molded to
address the nuanced needs of the autonomous automobile market, and both are
backed by precedents.

With the development of the concept of no-fault liabilities and social insurances,
no-fault automobile insurance would eventually become the standard for self-
driving vehicles, in the near future. In no-fault liability frameworks, policyholders
are constrained in their right to sue negligent tortfeasors and may only be
permitted to sue when injuries surpass a certain threshold.77 On paper,
autonomous vehicles will be demonstrably more secure than conventional
automobiles.78 In the coming days, as mishaps become rare and comparatively
diminished in gravity, it would be necessary and appropriate to have a framework
that can jettison fault-based tortious liability. However, when serious mishaps
occur and parties who have suffered injuries are at a threshold to move the court,
then the law can avail the aid of manufacturing and design defects to ascertain

76 Am. Assoc. for Justice, Driven to Safety: Robot Cars and the Future of Liability (Feb. 2017).
77 Gary Wickert, Commentary: The Failure of No-Fault Insurance, CLAIMS J. (May 12, 2016),
http://www.claimsjournal.com/news/national/2016/05/12/270759.htm [https://perma.cc/HK97-Z3SY].; Bridget
Hagan, The Future Is Now: Driverless Cars and the Insurance Landscape, FINTECH L. REP., May–June 2016,
at 8, 9–10. Less commonly, drivers are held strictly liable for engaging in an ultrahazardous activity that causes
injury.
78 Chris Martin & Joe Ryan, Super-Cheap Driverless Cabs to Kick Mass Transit to the Curb, BLOOMBERG:
TECH. (Oct. 24, 2016, 7:01 PM), https://www.bloomberg.com/ news/articles/2016-10-24/super-cheap-driverless-
taxis-may-kick-mass-transit-to-the-curb [https://perma.cc/A5KR-UWQK]

liability, and consider beyond the usual liability of fault-based negligence79. Thus,
product liability litigation will always subsist under the umbrella protection of the
tort law framework.

2.3THE WAY FORWARD

As modes of transportation and designs of commute and conveyance change on
a rudimentary level, so will the laws that. The alterations that the future holds are
inadvertently impossible to make predictions about and members of the industry
and innovators will have to conceive novel and unique proposals to remodel the
way the transportation sector functions.
Futuristic modes of automation paves way for a sense of precariousness in the
application of the tortious standard of negligence to the vicarious liability of the
owners of automobiles, the operators’/drivers’ duties of care, and the proportional
and parallel protections of insurance. It is imperative on the part of the courts and
the lawmakers to be mindful of the uncertainty in the application of pre-existing
tort law regime to novel innovation and technology – a possible midway would
be an arrangement within enterprise-liability-like theories of recovery; initially
envisioned for determining vehicular liability — but, which in the present day
and time, also consolidates principles and standards of strict and vicarious
liability incorporated with no-fault insurance. In turn, this proposition makes a
pragmatic result in a social set-up that pragmatically mitigates losses, indemnifies
victims, establishes expectations, and encourages development and innovation.
The Indian automobile industry is one of the most sizeable globally and has
accounted for approximately 7.1% of India’s GDP in the 2017-2018 fiscal year.

79 Gary E. Marchant & Rachel A. Lindor, The Coming Collision Between Autonomous Vehicles and the Liability
System, 52 SANTA CLARA L. REV. 1321, 1322 (2012) (assessing legal liability as a potentially limiting
consideration for manufacturers of autonomous vehicles).

The latest insights reflect the development trajectory that the sector has
experienced in recent years and the potential it holds in the days to come. In the
period of April-February, 2017-18, exports grew by a whopping 15.81%. The
generation of automobiles – passenger vehicles, commercial vehicles, three-
wheelers, and two-wheelers– grew at 14.41% annually to 26,402,671 vehicles in
the quarter of April-February, 2017-18. It is foreseen that India will be a pioneer
in the two-wheeler and the four-wheeler segment globally by 2020. The sector
has already accrued a Foreign Direct Investment worth US$18.413 billion
between April 2000 to December 201780. The exchange control laws of India
allow for a 100% Foreign Direct Investment in the automobile manufacturing
segment as well as in the Information Technology and Information Technology-
Enabled services. Thus, the Indian automotive industry has a luminous future to
tap into the immense potential of swift manufacturing, rapid job creation and
employment opportunities, technological innovation, and sustainable growth of
the Indian economy.
However, India will have to compete with developed nations, by making strategic
and periodic increments and innovations in the foundational infrastructure and
legal framework, and by tapping into the immense potential that the future of
autonomous driving holds. There is an imminent need of the hour for the
standardization of the foundational infrastructure and roadways, and a bolster in
innovations such as geo-mapping & GPS. Issues that act as barriers to innovation,
to name a few, are low-tech vehicles, a need for ample infrastructure for the
disabled, a disharmonious road discipline, a dearth of strict rules and regulations,
and lackadaisical enforcement thereof, and inexperienced and novice drivers and
operators of vehicles. And, although these stumbling blocks, and a lack of proper
legislation to govern autonomous vehicles, are not problems generic to India –

80 Indian Brand Equity Foundation, (https://www.ibef.org/industry/india-automobiles.aspx), as accessed on
14.07.2020

with Europe81 and the United States82 facing very similar complications; however,
the severity of predicament is much larger in India.
Apropos, the vehicles would have to be customized keeping in the Indian setting.
Data needs to be fed to the systems governing an autonomous vehicle with
regards to the permissible speed limits, stature, height and width limitations, the
condition and quality of the roadways navigated, common or constricted usage of
conveyance on the roads, like bullock-carts, cyclists, two-wheelers, ferries,
autorickshaws, and trucks, and the data-algorithms need to be modified
accordingly so that the autonomous vehicle is prepared to traverse in a general
Indian road without jeopardizing the life or safety of the dwellers or of the
driver/operator. Potholes, speed breakers, road dividers hazardously placed by
the law enforcement agencies or the police, rocks, gravel, and tar left behind by
road-repair and reconstruction groups, open drainages, added on with the India-
specific road-block caused by cattle or by devout celebrations of religious
significance being celebrated on the roads would mean that the manufacture of
autonomous vehicles would need to be put a lot of into before they ply on the
Indian roads. Autonomous vehicles shall also face a pertinent problem
encountered by conventional automobiles – an acute shortage of service centers.
All this calls upon corporations and private financial backers to significantly
increase the investments in servicing infrastructure.

Even in the initial stages of testing and trial, far-reaching fears with respect to
the safety of autonomous automobiles persist. Although operations at present are
confined to closed and controlled settings in many different countries, once
driverless automobiles are deployed in fleets in the open street - it will subject the
general public to high risk and peril.

81 Carl Fenger, “International Eye - Driverless Cars: The View from Europe”, May 2015, available at:
http://connectedworld.com/ driverless-cars-the-view-from-europe
82 Alexandria Sage, “Where’s the lane? Self-driving cars confused by shabby U.S. roadways”, March 31, 2016,
available at http://www. reuters.com/article/us-autos-autonomous-infrastructure-in-sigidUSKCN0WX131

The judgment which an autonomous vehicle may have to decide to take when
confronted with a situation wherein the occurrence of an accident is imminent,
can be many and myriad, each of which requests a distinctive ethical or moral
assessment.83 An autonomous vehicle may be modified to diminish the damage
by making an assessment and perusal of the least harmful way out, even if it
means that innocent bystanders’ safety is jeopardized. The autonomous vehicle
may also be conditioned to secure itself, irrespective of the ramifications that such
a measure may have upon others. The choice to embrace and enact either of these
approaches is escorted by stringent ethical and moral audit. Ethicists have perused
the philosophical thought experiment, commonly recognized as the “trolley
problem”, to raise ethical concerns with respect to autonomous vehicles and
automobiles.84 A trolley problem is a theoretical situation that hypothetically
takes into presumption a case scenario where a trolley car is on a collision course
to strike a bunch of innocent people standing on the way of the vehicle.85 The
alternative course that the trolley can tread on, which is an alternative which the
operator/driver has the control over, would be to run over a separate innocent
individual. So, the million-dollar question that the operator is crossed with is:
whether it is justified to take the life of one person while safeguarding the lives
of multiple; or to kill multiple people? The trolley problem presents the case of a
murky predicament in a case of a commission of a convoluted act, or an omission
thereof.86
Unlike ethicists, it is very likely that manufacturers and producers of autonomous
automobiles and vehicles, will be concerned more with the law and the legality,
and less with the ethics and the morality, while ascertaining the kind of decisions

83 . Rohit Sarma, “The Reasonable Machine: Offering a theory of reasonableness for Autonomous Cars”, Policy
Brief Thesis Jindal Global Law School, 2017
84 See Patrick Lin, The Ethics of Saving Lives with Autonomous Cars Is Far Murkier than You Think, WIRED,
(Dec. 20 2017, 10:19 P.M.), https://www.wired.com/2013/07/the-surprisingethics-of-robot-cars/; Noah J.
Goodall, Ethical Decision making During Automated Vehicle Crashes, 2424 TRANSP. RES. REC. 58,60(2014).;
Jeffrey K. Gurney, Crashing into the Unknown An Examination of Crash Optimization Algorithms Through the
Two Lanes of Ethics and Law, 79 ALB. L. REV. 183, 197(2016).
85 Judith Jarvis Thomson, The Trolley Problem, 94 Yale L.J. 1395, 1414-15(1985).
86 David Bourget & David Chalmers, What Do Philosophers Believe?, 170 PHIL. STUD. 465, 477 (2014).

autonomous vehicle normatively ought to take.87 Hence, it is essential that
algorithms employed in autonomous vehicles should be modified and
programmed to regard all human life with value, and as equals.- the driverless car
ought not to create segregations based on age, sex, race, disability, or any other
perceptible parameters88. An extremely basic and rudimentary right accorded to
all individuals is that we are all born free and equal and should be treated the
same way – the right to life also includes freedom from discrimination89.
Therefore, it equally is a prerogative of the manufacturers that they uphold civil
liberties and freedoms accorded to every person, by feeding data and information
to autonomous automobiles as algorithms free of any preconceived bias.
Autonomous automobiles and vehicles have plied over many kilometers as of
now, though in controlled and constricted conditions. Overwhelming investments
are being made into this framework by governments across the world and private
companies alike. It is anticipated that autonomous vehicles would likely have a
13% penetration into the automobile industry by 2025, with a valuation of around
$42 billion90.
The triumph of autonomous vehicles and the benefits accrued therefrom is both
a need and a necessity for the sustenance of human progress and advancement in
the 21st century. As a matter of fact, a progression into a society with automated
driving will not be smooth sailing. So, both the social standards and the law will
have to keep up with the meteoric progressions in autonomous vehicle technology
and innovation. Thereby, countries and corporations are expected to be in the
know with regards to such progressions and to devise their strategies accordingly.

87 Bryan Casey, Amoral Machines, or: How Robotronicists can learn to stop Worrying and Love the Law, NW.
U. L. REV. COLLOQUY (2017).
88 Dave Gershgorn “Germany’s self-driving car ethicists: All lives matter”, August 24, 2017: Available at
https://qz.com/1061476/ germanys-new-regulations-on-self-driving-cars-meansautonomous-vehicles-wont-
compare-human-lives/
89 Article 1, read with Article 2 and Article 3, Universal Declaration of Human Rights,
(https://www.standup4humanrights.org/en/article.html#:~:text=All%20human%20beings%20are%20born,in%2
0a%20spirit%20of%20brotherhood.), as accessed on 17.07.2020
90 “BMW Eyes New Business Opportunities with Autonomous Cars.” Reuters India. 2015. Web. 19 Feb. 2016.

The penetration of self-driven automobiles, and semi- or fully-automated
machines, which are currently in use in various economies around the world, is
only expected to increase with the passage of time. As a result, the dependency
of corporations and individuals on artificial intelligence systems is expected to
increase by leaps and bounds. This may also be evidenced by the fact that
artificial intelligence is expected to bolster the economic growth of several
countries by an average of 1.7%, across various industries, by 203591.
At this juncture, it would be imperative that the market-regulators undertake a
reasonable and balanced approach between the protection of the rights of
citizens/individuals and the need to encourage technological growth and
advancement. Failure to do so may either adversely impact the protection of rights
of the citizenry or, on the other hand, may have an inimical impact on novelty
and innovation. Additionally, regulators should also undertake steps to provide
for guidance and clarity as to the rights and obligations of the manufacturers of
autonomous and unmanned vehicles, as well as of the programmers or the
creators of the artificial intelligence software which regulates such automobiles,
in order to crystallize the broad ethical standards to which they are required to
adhere to. Due to a profound lacking in the legal jurisprudence on this subject in
India, it is hoped that in the days to come, doctrines and principles are imbibed
and incorporated by the legal system, by way of judicial precedents and statutes,
which will not only foster the development of autonomous technology but also
ensure that necessary safeguards are in place.
As modes of transportation and patterns of commuting fundamentally transform,
so too will the laws that determine complex questions of liability. The distant

91 Artificial Intelligence Will Enable 38% Profit Gains By 2035, Louis Columbus, Forbes,
(https://www.forbes.com/sites/louiscolumbus/2017/06/22/artificial-intelligence-will-enable-38-profit-gains-
by-2035/#680cd23e1969), as accessed on 14.07.2020

future is unavoidably quirky to predict and members of the industry will continue
to conceptualize new ideas for transportation.
However, it is interesting to note that the emerging trends in innovation and
technology are going to distort tort law. Most cases of tort-law in courts all over
the world involving automobile accidents are allegedly caused by a driver’s
negligence. By eliminating the human driver, autonomous vehicles would
eliminate these tortious claims. In the near future, the manufacturer will instead
be responsible for the operational performance of the autonomous vehicle,
potentially making such a manufacturer liable for any crash involving such a
vehicle. Autonomous vehicles will fundamentally alter the understanding of road
accidents and associated tortious liability, causing a massive shift from ordinary
negligence claims to those based on product liability. This dynamic will
inevitably scrutinize the current understanding of the doctrine of product liability,
ensuring a more holistic approach to ascertain the liability of a manufacturer and
being mindful of the dangers of either of the two parties being enriched unjust-
fully.
However, a collective advantage of the strict liability regime, especially in the
case of autonomous vehicle accidents, was not delved into in-depth in the study.
Strict liability should propel parties to form not fair a single abstract preventative
decision in a socially acceptable design, but to decide judiciously while
maintaining road safety and security.

Therefore, manufacturers of autonomous automobiles and vehicles ought to make
cautious and careful considerations on a plethora of concerns, including but not
limited to those concerning the development and testing of a vehicle control
technologies, communications frameworks and cybersecurity, braking
machinery, steering mechanisms, design elements to enhance shock-resistance,
and quality-assurance strategies in the production level.

In juxtaposition, in the fault-based regime, the underlying intent is not to prompt
the concerned parties to make socially appropriate decisions. The essential
reasoning behind the same is that courts will have a dearth of the understanding
of information in a manner that is in near vicinity to the socially desirable
standards. As was earlier emphasized, the safety and security of an autonomous
vehicle are dependent on a myriad of factors. Thus, it is improbable and
unrealistic to expect of the courts to able to singlehandedly frame socially
appropriate benchmarks for these scenarios, let alone to be able to ascertain many
of them – for instance, the courts cannot be counted upon to frame fault standards
with respect to communications between vehicles to diminish chances of the
occurrence of accidents, or whether sensors would be able to identify objects on
the road, or the degree of testing that ought to be conducted into the basic
automation of a vehicle perusing a moderated and modified material. Since
courts’ capacity to execute such tasks would otherwise be restricted, owing to
their dearth of data and technical know-how, they may often rely on fault-
standards that are as over-the-top stringent, or sometimes allow lackadaisical
standards, or may erroneously omit precautionary measures which might
otherwise be essential for determining liability.

None of these quandaries harrowing the courts in the determination of the
modalities of the application of the fault-liability rule would rise in the
implementation of strict liability since manufacturers will do the needful to ensure
a diminished risk of the occurrence of an accident by, “moving all the levers under
their control to properly reduce accident risks, whether or not courts would have
knowledge of how these levers ought to be moved, of the existence of all the
levers, and of how they were in fact moved.”92

92 Shavell, Steven. 1987. Economic Analysis of Accident Law. Cambridge, Mass.: Harvard University Press.

The need of the hour is a collaborative approach espoused by automobile
companies and technology companies, along with other segments or sectors that
may benefit and take advantage of, and supplement, the widespread emergence,
and utilization of this innovation. At the same time, it is significant that good
governance principles are put to perusal along with novel innovation– with
environmental and ecological preservation, a progressive outlook to life and a
sophisticated standard of living for the human society are at the heart of the plan
as autonomous vehicles slowly become the norm. With a suitable structure of
localization and superior infrastructure, unmanned autonomous vehicles should
be hitting the Indian streets within the not so distant future93.

93 ’Localised’ Driverless Cars May Become Reality for India in Few Years.” ‘Localised’ Driverless Cars May
Become Reality for India in Few Years. Web. 17 Feb. 2016.