Sometimes I find myself amazed at how quickly things change. You probably have had the same sensation in your own life watching the internet take off, your kids grow up, or the seasons change. What might be more amazing, at least from my view, is how much stays the same.
For product liability advocates and attorneys around the country worrying that the advancements in automotive safety are going to put them out of a job, let me reassure you: some things never change. Exhibit A is the Tesla Model S, a terrific vehicle equipped with a feature called “Autopilot.” Full disclosure: Nothing makes me want to buy a new car more than watching Youtube videos of people in a shiny new Tesla reading the newspaper and playing Jenga while their car dispassionately handles their morning commute.
That said, there is a problem here: Tesla tells us that the driver needs to stay engaged. On the surface, this kind of redundant safety seems like a good idea, but it’s not difficult to see the problem: If the car takes over active driving, even the most diligent drivers are going to tune out.
One of the more interesting accident reconstruction topics is perception/reaction time. What we know about perception/reaction time from accident reconstruction is that it takes around a half a second to perceive a problem, and another half a second to get your foot from the gas to the brake. This means under normal conditions, if you’re driving at 60 mph and you have to stop suddenly, you’re going to move about 88 feet before you start to apply the brakes, and then another 100-300 feet to stop. (Stopping distance varies widely based on vehicle, weather, weight, etc.) This might be alarming to read for the first time, but the reality is most people handle it intuitively, and although a lot of people follow too closely, it mostly works out.
One of the interesting things is that a driver’s perception/reaction time is that it improves if he is prealerted to a problem. If you see brake lights a quarter mile ahead, but the traffic immediately in front of you hasn’t yet slowed, you’re reaction to the car in front of you slowing suddenly is likely to be much better than if you hadn’t seen brake lights on the horizon.
Image from Tesla's Autopilot Press Kit
I have seen less research on the opposite effect, but I don’t think I’m out on a limb by suggesting that if you put me in a self-driving Tesla, I’m going to be half asleep two turns out of my driveway and my perception/reaction time to brakelights that my car misses is going to be somewhere in the neighborhood of 3-5 seconds after the crash.
What does this all mean in the world of product liability in Michigan? In Michigan, the driver’s family might sue Tesla and say the car screwed up and caused his death. Tesla’s lawyers will argue the driver should have been paying attention and cite their instruction manuals to emphasize how important it is not to tune out. The family can’t recover pain and suffering damages if the jury finds the driver’s fault is greater than Tesla’s. Any economic damages, like lost wages, are also reduced by the driver’s portion of fault. This means that even though there is very little question (at least in my mind) that everybody who engages Autopilot is going to have reduced perception/reaction time, the Michigan statutory structure makes it pretty darn difficult to hold a company like Tesla responsible, even if its new technology fails.
This isn’t new, and the catch-22 has played out many times before. Airbags, for example, fail from time to time, but every airbag non-deploy case starts with somebody at-fault for an accident. The car company’s attorney’s job is to pin the fault on that person, because it reduces their client’s fault. Litigation isn’t perfect, and Michigan law makes a lot of these cases impossible to pursue for accident victims, but litigation plays a big part in holding company’s accountable and pushing the industry to be better. Perhaps one day I’ll be complaining that I don’t have any work because everything is so darn safe—but not today.