Spring 2018

Self-Driving Cars: Are Negligent Causes of Action Soon to Be a Thing of the past in Motor Vehicle Accidents?

With so many car manufacturers announcing recently their plans of introducing self-driving cars into the marketplace, one has to wonder how that will affect liability when there is a motor vehicle accident involving one of these self-driving cars. In West Virginia, most, if not all, motor vehicle accident cases are premised on the negligent operation of a vehicle that led to the accident.  However, with computers and machines now in the driver seat (pun intended), new theories of liability will most certainly arise in these cases, with one being strict liability based on a defect with the self-driving car.

In a regular motor vehicle accident, a plaintiff most often asserts negligence as his or her cause of action, which requires the plaintiff to prove: “(1) [a] duty which the defendant owes him; (2) [a] negligent breach of that duty; (3) injuries received thereby, resulting proximately from the breach of that duty;” and (4) damages.  Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115, 118, 2 S.E.2d 898, 899 (1939) (citations omitted).  Moreover, the Supreme Court of Appeals of West Virginia has stated that negligence is defined as “what a reasonable and prudent person would ordinarily have done under the circumstances . . . .”  Honaker v. Mahon, 210 W. Va. 53, 58, 552 S.E.2d 788, 793 (2001) (emphasis added).  Dating all the way back to 1914, the Supreme Court of Appeals of West Virginia has held that an operator of a motor vehicle must operate said motor vehicle with reasonable care and has applied a negligence cause of action when the operator fails to act with such reasonable care.  Deputy v. Kimmell, 73 W. Va. 595, 80 S.E. 919, 920 (1914).  However, by now removing a person from the driver seat from a motor vehicle, a negligence cause of action does not appear to be the appropriate cause of action for measuring the liability of a self-driving car because a computer and/or machine cannot act as a reasonable and prudent person would have under the same or similar circumstance.  Thus, plaintiffs will most likely have to turn to the theory of strict liability for product defects.

 In West Virginia, strict liability based on an injury caused by a product has three components that create the separate causes of action: (1) a defect of the product; (2) negligence of the manufacturer making or altering the product; and (3) a breach of the warranty covering the product.  Syl. Pt. 6, Ilosky v. Michelin Tire Corp., 172 W. Va. 435 307 S.E.2d 603 (1983). A defective product is one that is not reasonably safe for its intended purpose and can be proven to be defective either by showing that: (1) there was a manufacturing defect; (2) there was a design defect; or (3) there was a use defect caused by inadequate warnings, instructions, or labels. Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 888-89, 253 S.E.2d 666, 682-83 (1979).  A design defect is one in which the entire line of products was designed in such a way that it makes the product potentially harmful and a safer alternative design existed at the time the product was designed.  Id. at 888-89, 682-83. A product contains a manufacturing defect if the product differs from the manufacturer’s design or specifications or from other typical units of the same product line.  Id. at 884-85, 681.

Because a person will no longer be operating these self-driving cars, West Virginia trial courts will be hard pressed to assert liability on the person sitting behind the wheel.  Instead, plaintiffs’ attorneys will most likely take the route of attempting to prove a defect with the self-driving car.  Although there will almost certainly be hurdles for plaintiffs to overcome using a cause of action grounded in defective products, such as increased costs of expert witnesses in trying to prove a defect, the rewards of potentially much higher verdicts may outweigh those costs.  Furthermore, by being able to present a negligence claim against the manufacturer, distributor, and/or seller of the self-driving car for failing to use reasonable care in the designing, manufacturing, and/or warning about the self-driving car, parties to the litigation should feel some level of comfort with the familiar analysis of the “reasonable prudent standard” that exists in normal motor vehicles accidents involving individuals driving the vehicles.  See Yost v. Fuscaldo, 185 W. Va. 493, 497-98, 408 S.E.2d 72, 76-77 (1991).

 It appears that the days of a driver being simply negligent in causing a motor vehicle accident are coming to a close, or at the very least on the decline, with news of the self-driving cars on the way.  Causes of action for negligence may still be asserted against the individual behind the wheel, but it is expected that the main focus of the litigation will be centered on the liability of the manufacturer of the self-driving car.  With the recent tort reform that has been occurring in the West Virginia State Legislature, expect the legislature to tackle the issue to reduce exposure of liability for manufacturers in future sessions, and look for the Supreme Court of Appeals of West Virginia to promptly deal with this issue at the first chance it is given to review a case involving a self-driving car, which appears to be much sooner rather than later.