Self -Driving Cars and Crash
Avoidance Systems: The Future of Car Crashes”.
Jaime
D. Jackson
Atlee
Hall, LLP
Crash Avoidance Systems (CAS) or Crash Avoidance Technology (CAT) is now
becoming widely implemented in production vehicles. CAT has already had an
impact on how car crash cases are litigated, and who the proper defendants may
be, and will continue to have a more dramatic impact as this technology
continues to be developed and implemented.
THIS IS NOT THE FUTURE THIS IS NOW!
The
wide-spread implementation of Crash Avoidance Systems (CAS) otherwise
known as Crash Avoidance Technology (CAT) will revolutionize the concept of driving. It
could be the first step toward autonomous driving, perhaps along with the many currently-performing driverless car projects, including Google and
Uber, but more importantly it could be a huge step toward increased road safety
if this technology is tested and implemented in the right way. All CAS and CAT systems have a clear purpose of not only
driver safety, but complete road safety. CAS is not just some idealized goal to
be accomplished in the future, but it is happening right now. Although we might best classify CAS and CAT as within
the first stage of implementation, automotive manufacturers and suppliers are
moving quickly to get this technology on the road, and the industry push to
driverless cars is on full force..
Automotive
manufacturers and suppliers are moving quickly to get this technology on the
road. It is expected there will be more that 100,000 autonomous cars on
American highways by 2025. We are already seeing these ads on TV, as there is a
push to be first to market or on the leading edge. Chevy put out new
commercials about Forward Collision Warning (“FCW”) being “available” on its
new Chevy Equinox.[1] These
ads show focus groups being introduced to FCW on the Equinox. A focus
group member says “Maybe Ford should try to keep up” after the moderator tells
them that the Ford Edge does not have Forward Collision Warning. Think about
“failure to equip cases” against auto manufacturers, as safety should not be an
option. Mercedes has a demolition derby ad for its
2014 M –Class where the announcer states, “Its almost as if it couldn’t crash even
if it tried[2]
As the
automotive industry has shown, flaws and defects in vehicles continue, For
example, in May, Honda recalled some 2014-2015 Acura MDX 2WD and AWD, RLX and
2014 Acura RLX Hybrid vehicles, because its Collision Mitigation Braking System
could incorrectly interpret certain roadside objects such as metal fences or
metal guardrails as obstacles and unexpectedly apply the brakes. Over three
miles of wiring, weighing more than 150 pounds, is in a modern car. It,
and its associated connectors, is reportedly the third heaviest component in a
car, after the engine and transmission (Car & Driver, p. 34, December 2013)
In order
to better understand how crash avoidance systems and crash avoidance technology
will effect car crash litigation, it is first important to gain an
understanding of what this technology is, what its function is and how it
effects the drivability of the car. This technology has an effect on how these
cases are prosecuted, for instance what exactly are the negligence claims
against the driver, may have a different flavor, for example failing to
properly respond to the forward collision warning (FCW) or the Side View Assist
(SVA). The distracted driver? Technolgy
will effect how these cases are defended, for example, a defense may be, “this
rear end crash was not the driver’s fault because the car was equipped with
Automatic Emergency Braking (AEB), that did not engage in time to avoid the
crash. And perhaps most importantly, who is responsible for the crash? The
driver? The automated vehicle that did not avoid the crash? Both? This is a
whole somewhat new area of the law and litigation. One must also consider
litigation against the auto manufacturers for failing to equip its vehicles
with Crash Avoidance Technologies that have been available for years, and then
if the technology fails or malfunctions, or does not perform properly due to
software errors or defects, may subject the auto manufacturer to auto product
liability claims.
Current Crash Avoidance Technology (CAT)
The Insurance Institute for Highway Safety (IIHS) has
created a program for evaluating the performance of front crash prevention systems
to raise consumer awareness of safety options and encourage auto manufacturers
to adopt and continue developing this technology. (see, http://www.iihs.org/iihs/ratings/crash-avoidance-features) The program ranks
vehicles based on the availability and functionality of crash avoidance systems. A higher ranking is
given to vehicles that utilize crash avoidance technology.
Forward
Collision Warning and Automatic Emergency Braking
Forward
Collision Warning, (FCW) the most passive of the front crash
avoidance technology, which uses camera, radar, and/or laser equipment for
object recognition and speed detection, and alerts the driver via visual,
audio, or haptic warning to apply the brakes when the relative speed between a
vehicle and object in the road presents a risk of impending collision.
Automatic
Emergency Braking, (AEB) the most active of the front crash
avoidance technology, which automatically engages the full braking potential of
a vehicle to either completely prevent a frontal collision or slow the vehicle
down to mitigate severity when an imminent collision is detected. AEB is a camera-based or radar-based
system that utilizes object recognition and speed detection to determine
whether the relative speed between a vehicle and object in the road presents a
risk of impending collision. A camera-based system uses a mounted camera with
object recognition on the windshield behind the rearview mirror, and the
radar-based system uses a 24 GHz medium-range sensor connected to a warning
device.
In conjunction with FCW, the Automatic Emergency Braking System (AEBS)
or Predictive Emergency Braking System
(PEBS) activates automatically when the FCW system determines that the
distance between the driver and a vehicle or object in road is becoming
critically short. When a critical situation is detected, the system may alert
the driver, may initiate partial braking, and may prepare the brakes for
emergency stopping in such a way that the driver may engage full braking
potential as soon as the slightest pressure is applied to the brake pedal.
On the other hand, something to consider is that while
forward collision warning is intended to alert the driver to an impending
collision it can also be distracting or create a false sense of security or in
attentiveness because the driver believing the car will stop itself or avoid a
crash.
Dynamic Brake Support
Other
crash avoidance technologies include Dynamic Brake Support, a hybrid of passive
and active front crash avoidance technology, which pre-conditions the brakes
when a collision is detected so that full braking power is applied with even
slight force to the brake pedal, to shorten the vehicle’s stopping distance.
Pedestrian Detection Systems
Some
vehicle also include Pedestrian Detection systems which warn the driver or
automatically engage emergency braking when pedestrians are detected either in
the same lane as the vehicle or to be moving dangerously into this direction. BMW
and Toyota are currently implementing this technology.
Crash or Injury Mitigation Systems
Apart
from crash avoidance technology, suppliers and manufacturers are working on
adaptive restraint systems and other pre-crash systems. TRW, for example, is
producing the Active Control Retractor, a system that provides full or limited
reversible belt retraction when dangerous situations are detected. Similarly,
Mercedes has implemented a system called Pre-Safe into their latest line of
production, a system which automatically engages when an imminent collision is
detected and prepares the vehicle’s occupants by tightening the front seat
belts, adjusting the front head restraints and passenger seats, and closing the
windows and sunroof. It is important to know in whether your client’s vehicle
was equipped with such safety systems when analyzing their injuries.
Adaptive Cruise Control
Adaptive Cruise Control (ACC) technology is
another area that will continue to flourish. These systems automatically engage
the vehicle’s brakes and acceleration to control the distance between the
driver and other vehicles or objects on the road. For example, when the cruise
control is set on the highway and a slower moving car merges ahead, a vehicle
will automatically engage the brakes to prevent or mitigate a collision. When
that car merges back over, the ACC system will bring the vehicle back up to
speed. TRW’s system utilizes a 24 GHz ISM frequency band radar sensor to detect
relative speeds between a vehicle and object in the road. Bosch is also
producing ACC systems, and manufacturers such as Infiniti, BMW, Opel, Cadillac,
Jeep, Dodge, Ford, and Toyota have already designed their newest models with
this safety feature.
A
sub-system of the ACC technology, called the Stop-and-Go system by some manufacturers, is designed for use in
traffic jams, and will automatically accelerate, steer within the same lane,
and bring the vehicle to a stop. The driver’s vehicle will basically follow the
vehicle in front of it as long as it is in the same lane. Accordingly, when the
Stop & Go feature is engaged in a traffic jam and a vehicle ahead merges
into a separate lane, your vehicle will begin to follow the next-in-line
forward vehicle. The system developed by Bosch will automatically activate,
when the ACC function is being used, at speeds below 20 mph. Bosch has stated
that “[i]n the following years, the system will be enhanced to cover
ever-faster speeds and more complex driving situations, including automatic
lane change.” Manufacturers including VW, BMW and Jeep are currently utilizing
this feature in their 2015 production line.
Lane Departure Assist Systems
Additionally,
Lane Assist systems, including such technology as Lane Departure Warning (LDW), Lane
Keeping Assist (LKA), and Lane Centering Assist (LCA), are all designed to
promote lateral safety. LDW is a camera-based system that provides a driver
with visual, audio, or haptic (involving a vibrating steering wheel or seat)
warning when the driver’s vehicle unintentionally crosses a road lane marking
or the edge of the road. LKA is also a camera-based system and is designed to
utilize electronically powered steering to provide counter-steering torque to
assist the driver in moving back into the center of the lane. LCA is
essentially an LKA system, except that its purpose is to continually assist the
driver in keeping the vehicle in the center of the lane. To prevent misuse of
the system for autonomous driving, both the LKA and LCA employ hands-off
detection systems. Furthermore, for safety reasons, both the LKA and LCA are
designed to be easily overruled by the driver. Automotive suppliers producing
this technology include TRW and HELLA. Manufacturers currently implementing
Lane Assist technology include Infiniti, BMW, Opel, Mercedes, Cadillac, Jeep,
Hyundai, Honda, Ford, and Toyota.
Similar
to the Lane Assist systems, Side View
Assist (SVA) systems promote lateral safety by continually monitoring a
range of area alongside and diagonally to the rear of the vehicle through an
ultrasonic sensor. When another vehicle is situated in the monitored area, a
warning LED light may display in the driver’s side mirror. If the driver uses a
turn signal while a vehicle is in the monitored area, an audible warning will
activate. The SVA system is not activated by stationary roadside objects, such
as guardrails, poles, or parked vehicles. Bosch is currently producing SVA
systems, and manufacturers including Infiniti, Volvo, Mercedes, Cadillac, Jeep,
Hyundai, Honda, GM and Ford, have
implemented similar technology into their current line of production.
Back Up Systems and Rear View Safety
We will
also be seeing a big jump in rearview safety, as NHTSA
has issued a rule under the Federal Motor Vehicle Safety Standards (FMVSS) that
will require all new vehicles weighing less than 10,000 pounds to have rearview
visibility systems giving the driver a 10-foot by 20-foot zone of vision
directly behind the vehicle while backing up.
Although the rule does not explicitly mandate the use of cameras to achieve
this goal, the most practically available means of compliance would require
auto manufacturers to install rearview cameras. NHTSA has included a phase-in
period to ease the burden on manufacturers. For new vehicles manufactured after
May 1, 2016, but before May 1, 2017, 10% of all new vehicles must be in
compliance; 40% new vehicles manufactured after May 1, 2017, and before May 1,
2108, must be in compliance; and, finally, for new vehicles manufactured after
May 1, 2018, 100% of a manufacturer’s fleet must be in compliance with NHTSA’s
rearview visibility requirements.
NHTSA estimates that 58 to 69 lives will be saved each year, not including
injuries prevented, once the entire on-the-road vehicle fleet is equipped with
rearview visibility systems that meet these requirements.
Parking
Assist Systems
Parking
Assist systems, such as Parking Assistant, Parking Aid, and Rear Cross Traffic Alert, are all designed to promote safe
backing up techniques. The Rear View System complements a normal rear-view
camera with an ultrasonic sensor, giving the driver the ability to see an image
of what is behind the vehicle as well as the distances of objects behind the
vehicle. Parking Assistant utilizes an ultrasonic sensor and calculates the
best path into a parking spot. Once found, the system alerts the driver to
press a button to park. The driver will still have to engage the gas and
brakes, but the steering will be hands-free. Parking Aid gives the driver an
alert when ultrasonic sensors in the front and rear of the vehicle detect an
object within 250cm of the vehicle. The Rear Cross Traffic Alert system issues
an audible or visual warning to the driver when the vehicle is backing out of a
parking space and other vehicles are crossing to the right or left behind the
driver’s vehicle.
First Licensed Autonomous Commercial Truck
On May 5, 2015, Nevada became the first state to
license an autonomous commercial truck to operate on a US public highway. The first-licensed
Freightliner Inspiration Truck, manufactured by Daimler Trucks North America
(DTNA), underwent over 10,000 miles of testing in Papenburg, Germany, before
receiving a special operating license from the Nevada Department of Motor
vehicles. Although the truck is not
completely autonomous, DTNA categorizes it as a Level 3 on NHTSA’s five-level
(0 to 4) scale of autonomous vehicle operating systems. “Vehicles at this level of
automation enable the driver to cede full control of all safety-critical
functions under certain traffic or environmental conditions and in those
conditions to rely heavily on the vehicle to monitor for changes in those
conditions requiring transition back to driver control.” According to DTNA,
autonomous vehicles will allow their drivers to work more efficiently by, for
example, handling logistical tasks, including scheduling and routing.
Advanced
Lighting Systems
Intelligent
Headlight Control systems utilize a video camera to
measure ambient brightness and estimate the distance from vehicles in front and
oncoming traffic. Bosch’s system includes three different functions: the driver
may set the high beams to switch on or off automatically depending on whether
other vehicles are detected; the driver may set the high beams to continually
adjust between low and high beam levels depending on the distance between the
driver’s vehicle and other vehicles; or the driver may set the high beams so
that they automatically tilt either vertically or horizontally depending on
where other vehicles are located.
Night
vision systems utilize either an active infrared
light invisible to humans or a thermographic camera to provide the driver on a
video screen the ability to see greater distance than is possible with conventional
low beam lights
Additional
Features
Road
Sign Recognition systems utilize a video camera to
detect speed limit road signs and then display the speed limit in the form of a
symbol in the cockpit of the vehicle. The driver has an option to employ an
audible warning when the vehicle’s speed exceeds the speed limit.
Driver
Drowsiness Detection is a system that identifies when a
driver does not steer for a brief period of time and then makes an abrupt
correction to the steering. The system analyzes the frequency and strength of
the driver’s reactions, as well as other data such as vehicle speed, time of
day and use of other indicators, to calculate a threshold for when to engage
warning signals. Warning signals may be visual or audible to remind the driver
of the danger of nodding off at the wheel.
Self Driving or Autonomous Vehicles
The crash
avoidance technology outlined above are the fundamental building blocks to
driverless cars. While perhaps we have seen in movies or on television, “self
driving cars” for years now, this technology already exists and has existed for
some time. Google and major car manufacturers are currently test-driving and
developing driverless cars. It is expected there will be more that 100,000
autonomous cars on American highways by 2025. This will greatly impact
liability and the law of car crashes moving forward. Law Schools are already teaching courses on the law of autonomous driving. In
preparation for the widespread use of self-driving cars, states are beginning
to pass autonomous vehicle laws. The National Highway Traffic Safety
Administration (NHTSA) is currently researching autonomous vehicle technology
to develop appropriate regulations.
Generally
speaking autonomous, in otherwords, self driving vehicles utilize technologies
that navigates, detects traffic, and measures and analyzes the surroundings
through the use of radar sensors, laser rangefinders, video cameras, global
positioning systems (GPSs), and maps. The laser rangefinders map out the
driving environment, the cameras and vehicle radars . . . detect potential
obstacles, and the GPS determines the location of the vehicle to help it stay
on the correct path.
Governments New Highly Automated Vehicle
Guidelines Fail to Protect the American Public
The
recent guidelines published by the National Highway Traffic Safety
Administration NHTSA abdicate its mandate which would have resulted in
thoughtful, thorough, national regulations that ensure, transparency, safety,
and accountability, instead they are simply deffering to the industry to
regulate itself and passing the buck down to the states. The guidelines clearly
lack legally enforceable regulations and may allow the possibility of
states weakening existing liability laws that protect
consumers and permit manufacturers of unsafe and
malfunctioning vehicles to escape
responsibility for harm caused when a highly automated vehicle (HAV) crashes.
NHTSA must not delegate its regulatory
responsibilities to the states. NHTSA must issue a minimum federal performance
standard for Highly Automated Vehicles (HAV’s), and make clear there is no
preemption. Designers and manufacturers must be held accountable for any harm
HAVs cause.
This announcement should
not be seen as an alternative to comprehensive safety standards, thorough
oversight and strong enforcement. The promising benefits of HAVs are great, but
the potential problems are too serious and the public safety risks are too
momentous to be left to industry alone. Recent incidents involving the recall
of tens of millions of vehicles and needless deaths and injuries due to faulty
General Motors’ ignition switches, dangerous Takata airbags and cheating
emissions systems in Volkswagen vehicles highlight how the industry easily
conceals problems from both the public and the government.
The
Department of Transportation (DOT) must use its federal regulatory authority to
assure the American public of the safety of HAVs. Safety performance standards
encourage competition among automotive companies because they help to assure a
market for the real innovators and suppliers. The manufacturers always complain
about new federal protections, but HAVs are a whole new technology with great
promise but also with the potential for serious public harm.
The advent of this new
technology and its release is happening so quickly that the NHTSA claims it is
not ready to issue minimum regulatory performance standards. NHTSA has surrendered its Congressional mandate to
manufacturers and the States. This is abhorrent of the National Traffic Safety
Act. In doing so, it appears that we’re heading toward
a hodge-podge of state regulations or no regulation whatsoever.
The addition of HAVs to the
marketplace represents a brand new area
in which vehicle manufacturers will compete for sales. There are billions of dollars of profits at
stake. The more “autonomous” features that are offered, the greater the
marketing opportunities. This certainly explains the frenzy of car companies to
market each feature and to be the “first” with the “most” automated features.
Those who would market and profit from
this technology – vehicle manufacturers and their suppliers – have organized
major lobbying efforts suggesting that laws should be passed granting them
immunity and shielding them from liability when injuries and deaths happen
because of the failure of this new technology. They want taxpayers and state
health care systems to fund their mistakes. That's not fair!
If corporations are confident that their highly automated
vehicles will work properly and safely, why do they want immunity? Why should
this industry get blanket protection?
Why should they even be worried about having to accept responsibility if
their technology fails? Because history has proven that vehicle design changes,
and especially those involving new technology, can cause injuries and deaths.
In their rush to introduce as many
computer driven safety features as possible, and reap the profits of increased
sales, car manufacturers must not put vehicles on our highways unless each
feature has been properly designed and fully tested to be certain of their
effectiveness. To fail to do so would
surely expose the motoring public to new and unidentifiable risks of injury and
death.
Without well thought out regulations,
the marketplace must demand that each
company that participates in the design, manufacture or sale of highly
automated vehicles commit – publicly – to take full responsibility, including accepting
legal liability – for collisions and their consequences when such features
fail.
Given the extensive
deference the NHTSA has shown to the industry when it comes to the safety of
HAVs, the industry must chose to accept responsibility and accountability for
the self-driving vehicles it puts on America’s highways and to which American
citizens entrust the lives of our families. As companies work to develop HAVs
and collision avoidance technology (CAT)
such as “lane departure warnings,” “lane departure steering control,” “auto
brake features,” “frontal object detection,” “rearward object detection,” and
“auto pilot,” it has become increasingly clear that consumers are totally
reliant on manufacturer’s skills and willingness to provide the safest available
systems. While the industries’ efforts, as well as the voluntary guidelines
promulgated by NHTSA, are a good first step, countless safety concerns remain
when it comes to HAVs and CAT that could expose consumers to unnecessary harm
if they are not properly designed and fully tested. Recognizing this, every
manufacturer should follow the lead of Volvo Cars, whose chief executive
officer recently stated his company’s commitment:
“Manufacturers should be held responsible if their autonomous
technology causes car accidents. We are the suppliers of this technology and we
are liable for everything the car is doing in autonomous mode.” –President and
CEO Hakan Samuelsson, October, 2015.
As HAVs become a reality, with the singular goal of making
highway travel safer, it is vital that American consumers be able to trust that
each manufacturer has made its vehicles safe and reliable. To this end, every other vehicle and component manufacturer
must join with Volvo Cars and make a public pledge to accept responsibility for
harm and injury resulting from a collision that occurs because of the failure
of an autonomous feature or when one of its automated systems either
malfunctions or fails to perform as intended.
Absent such a pledge how can the NHTSA, the states and the American
Public trust the safety of their families to these highly automated vehicles?
The guidelines do appear to
indicate DOT is planning to address
these issues and seeking public comment for this new system of transportation;
but it must not shy away from assuring public safety with minimum federal
vehicle safety standards and means to hold manufactures responsible and
accountable. It should not rely on mere guidance, deference to the industry and
each individual state. NHTSA must not delegate its regulatory
responsibilities to the states. NHTSA must issue a minimum federal performance
standard for Highly Automated Vehicles (HAV’s), and make clear there is no
preemption. Designers and manufacturers must
be held responsible and accountable for any caused when an HAV does not
perform as intended or malfunctions.
Moving Forward
This
technology will have a dramatic effect on how car crash cases are litigated and
we need to be prepared for it. It will greatly impact insurance rates and
insurance premiums as this technology is implemented the number and severity of
crashes will no doubt decrease. It also raises the question as the whether the
driver or the vehicle is responsible for the crash? Or both? Despite what the manufacturers have told us, CAT
technology will fail and crashes will be out there. While we hope the opposite
is true, we must continue to be on the lookout for cases involving defective CAT
technology. And we must be just as eagerly monitoring for the “failure to equip”
cases, in other words not having this technology as standard equipment on all
vehicles, including commercial vehicles. Safety is not an option. Other cases
may involve the technology simply not performing as intended or expected, such
as the problems noted above with the Acura Collision Mitigation Braking System
incorrectly interpreting certain roadside objects like metal fences or metal
guardrails as obstacles and unexpectedly applying the brakes.
The legal
profession, as it has always done, will play a critical role in protecting the
American public, and holding the automotive industry accountable when their
vehicles fail and harm the public.
