In October, General Motors’ Cruise robotaxi unit was involved in a incident where a woman was thrown in front of their vehicle after being hit by another car. They say they braked hard, but could not readily avoid running her over, but after they came to a stop, they soon tried to pull off to the right, dragging the victim and ending up with a wheel on her leg. The victim reportedly remains in hospital with serious injuries.
It’s possible the victim might bring a lawsuit against Cruise, as well as the hit-and-run driver who hit her—this driver has not yet been found. While they probably would not face liability for hitting her while trying to brake, their vehicle’s decision to start moving again, dragging and pinning her, probably worsened her injuries, and they could be liable for that. I contacted Landon Vivian, who is Managing Attorney for The Barnes Firm in the Bay Area, a firm which specializes in car accidents and injury cases, for information on what typically happens in these cases. This case, of course, is quite unlike most of the cases seen every day on the roads, because of the presence of the robot. We’re not used to dealing with robots harming people, and juries are likely to react quite differently to it than they do to human drivers.
Car accidents are probably the most common tort in the world, and they’re usually settled and handled by insurance companies. They often just involve ordinary people with insurance policies, and if serious, they are settled for the full amount of the liability insurance. More rarely they have deep pocketed defendants, like General Motors, and the story is different.
There are three parties with fault in this incident. In California, the jury will be asked to portion out the blame. They will assign some of it to the woman, who was crossing against the red light/don’t walk sign at a fairly reckless time. (”Jaywalking” was recently decriminalized in California, but it still brings about liability.) Surely a great portion will go to the driver of the Nissan Sentra who fled the scene—even though he or she might not be found. For the dragging, some may go to Cruise.
If the jury decides damages are $500,000, but they also decide the comparative negligence numbers are 20% pedestrian, 70% hit-and-run driver and 10% Cruise, Cruise would only need to pay her $50,000. It’s anybody’s guess as to what the percentages and damages will be. Though juries are supposed to calculate each independently, in reality they often will come up with a final number in their minds and create numbers that multiply to get it. That will depend as much on emotion as reason in many cases, and lawyers for both sides would try to use those emotions.
That is, if it goes before a jury—which it almost surely won’t. All parties, especially Cruise, know the cost of such a lawsuit could be immense. Cruise is very likely to offer a generous settlement. Because there are so many uncertain factors, the lawyers for the pedestrian will probably advise taking the settlement rather than rolling the dice in court. Aside from cash, the settlement will probably also include silence, so we won’t know any more about the situation.
In the tragic event that she doesn’t survive, her family would probably take the same settlement. That’s what happened within just a few days when a prototype car being tested by Uber fatally struck a woman in Tempe, Arizona. Ubers are involved in crashes every day and so they have a very practiced legal team that handles this. Hopefully, she will survive, but in that case lawyers will advise not taking a settlement quickly, according to Shawn Cline, a business manager at the same firm, because you want to see if any new facts develop.
While ordinarily we would see a fairly standard personal injury tort lawsuit over matters like this, the involvement of the Cruise car makes it very likely the matter between Cruise and the pedestrian would be primarily treated as a product liability lawsuit. That will ask whether Cruise was negligent and designed their vehicle in a defective way, and whether they should have programmed it differently to avoid the injuries. This could lead to higher damages and in extreme cases, punitive damages, but the injury tort would still remain on the table. At present, we don’t know which of her injuries were caused by the different traumatic events, and how severe each injury was.
Cruise is unlikely to face any liability for their first impact, as the woman was thrown in their path, and they report they started braking in under half a second—faster than a typical human can react. The main focus will be on events after they stopped and started moving again, such as the dragging, and the pinning by the tire of her leg. Once emergency crews arrived, they instructed Cruise’s operations team to not move the vehicle off of her. This is standard emergency procedure, as moving can make things worse. Instead, they brought in the “jaws of life” to lift the vehicle and evacuate her to hospital.
In an ordinary tort case, the jury would assign damages for the injuries from this section, and for pain and suffering and loss of time and income. While this happens frequently, juries have wide discretion in evaluating such matters, and their own emotions play a role. They will probably feel differently about injuries caused by a robot or a corporation to those caused by a human they have more empathy with.
I asked Vivian what would happen if a human had been driving and done the same. In this case, the decision to pull over would be unusual, but could be due to panic. Even so, “you’re going to have a good tort case” if a human did that, he said. The jury would attempt to decide if they were negligent or reasonable in their actions, and their empathy for a fellow human with panic might soften their view. The robot does not “panic,” and all of its decisions and movements will be recorded in detail in the digital logs, and the reasoning encoded in the software. They will try to examine why the programmers programmed the behavior as they did, and decide if they should have done better. If a human would face liability for doing what the robot did, it may be a long road to get the robot excused because it thinks so differently.
There’s a strong argument they should have done better. We don’t have information at present, but it’s likely the vehicle simply was not aware she was under their vehicle. The jury will consider whether they should have known, which will involve lots of opinions from expert engineers. Cruise’s Bolt does not have sensors that see under the car, and it uses tilted roof sensors to see to the sides. The next generation Cruise Origin vehicle has sensors that stick out with more visibility to the sides of the vehicle. Waymo’s Jaguars and several other cars may have better visibility there, but not all teams may have it. Absent sensors under the car, questions will be asked about whether the software understood the woman had vanished from view under the car and had not re-emerged. To humans, that’s an obvious thing, and robots attempt to mirror our object permanence ability but they don’t do it as well. Robots can make very “inhuman” mistakes and the jury may not be able to sympathize with them.
The lawyers for both sides will do psychological research and use focus groups to see what arguments work best with typical jurors. That’s how the law works. A different question is whether that will work with robocars. Incidents like this create a difficult paradox. Cruise claims their cars drive more safely than typical human drivers. Waymo has also shown data with even more impressive results. It might be the case that a company’s cars have half the crashes of humans—something very good for society—but that each crash faces quadruple the cost in court cases or settlements because of these differences. The net result would be to punish companies who make the roads twice as safe, which is not what we want as a society or as users of the roads. The people saved are not before the jury, and their names are not even known.
Hiding the dragging
According to Vivian, Cruise could face major problems for having hidden details of the incident from the press, even if you ignore the allegations that they hid details from regulators. “That’s a really big deal,” says Vivian and can increase damages. As holders of the keys to the information, they could be seen as abusing that power which can create an “angry jury.” A case that isn’t settled would feature a discovery phase, where there is a legal duty to hand over relevant evidence. Hiding to the press isn’t as bad as hiding at that phase, but it could still have very negative consequences.
It also might not help Cruise so much if it turns out that the reason their car pulled over so quickly was a response to the regular requests from San Francisco city officials that they not stop in the middle of the lane and block traffic. While as yet there has been no direct disclosure related to this, it is interesting that previously Cruise was taking a great deal of flack for not pulling over quickly enough, and in this incident, the problem was they tried to pull over immediately. It’s one of the many Catch-22 situations involved in programming a robocar, balancing safety and caution with good road citizenship and human-style aggressiveness, but a jury is not likely to give any sympathy for that in a product liability lawsuit. In fact, it could make things worse, demonstrating they knew better but acted differently.
Cruise might be able to sue the Nissan driver for causing all their headaches and putting them in this situation. That can only happen if that driver is found, and has resources or a high liability insurance policy. This is a less common tactic.
All of this information just explains the reason that a settlement is much more likely. Cruise and the pedestrian’s lawyers will try to honestly estimate much much money the pedestrian might be awarded, and Cruise will offer a fair bit more than that, and the pedestrian’s lawyers will, if they agree with the reasoning, be duty bound to advise that the offer is more than reasonable. Sadly, it will probably bind the parties to silence, though that might be a mistake if Cruise wants to convince the world that they seriously want to be more open, and don’t have things to hide.
Some day, a case will go to trial. It will be very expensive, with long depositions of all the programmers and experts arguing opposite points all day long for high fees. We’ll see just how expensive those cases get and if they stay expensive. If they do, it might severely curtail the deployment of robocars until new policies are set.
In the field of general aviation (private planes) it became the case that every incident resulted in major liability for the airplane manufacturer. It got so large that the insurance started costing more than the plane was worth. As a result, all the makers of small planes in the USA left the business. Congress saw that as an untenable result, and rewrote the laws to cap those liabilities. We want to see victims compensated for what happens to them, while at the same time promoting the fast deployment of technology that makes our roads safer. It may be a challenge to do both at the same time.
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