Human Masters/Robot Servants: Highly Automated Vehicle Design, Intoxicated Drivers & Vicarious Liability

A traditional engineering role is to design a safe product. Safety engineering is an exercise in harm avoidance ex ante. In contrast, liability attribution is an exercise to compensate for loss post hoc—traditionally viewed as a legal matter. We observe that, when a natural person incurs liability for a loss that exceeds insurance coverage, economic ruin can follow. Neither engineering nor law focus on the loss suffered by defendants considering law as a “safety risk.” The highly automated vehicle (HAV) design space, however, provides an opportunity to prevent this kind of economic harm from occurring ex ante just as attention to safe design can prevent loss from physical injury and property damage. Including legal outcomes as design specifications allows engineers to create a product with physical features that achieve legal outcomes for consumers. It also allows for identification of legal risks that corporate management can target for law reform, leading to changes in the design of the legal system. Importantly, the legal system is malleable in ways that physical systems are not. This Article explains why HAV manufacturers and developers should consider law during the design process for an AV intended as “fit-for-purpose” to transport intoxicated persons. It suggests that management, marketing, engineering and legal functions collaborate to develop product requirements and specifications that shield owner/occupants from criminal liability for DUI manslaughter, negligent homicide and similar charges, as well as guard against civil liability. This collaboration should occur for HAV deployments in any state of the United States. Beyond addressing HAV feature design, this Article recommends that the HAV industry pursue a legislative agenda, as an adjunct to feature design, to expressly provide legal protection from liability in various scenarios in which the mere capability to control the HAV or mere ownership of the HAV can result in liability without fault on the part of an occupant or owner. The specific recommendation consists of a series of amendments to federal law to protect owner occupants of HAVs much as the Graves Amendment provides protection to car rental companies from liability for accidents caused by their customers.