By Jeffrey Phaup

In October of 2020 Tesla, Inc. released a beta test of a “Full Self-Driving” (FSD) version of its Autopilot software.[1]However, despite the name of the upgrade, a Tesla using FSD mode is not capable of driving without driver oversight.[2]Tesla’s Support webpage confirms this, stating that, “The currently enabled features require active driver supervision and do not make the vehicle autonomous.”[3] In fact the National Highway Traffic Safety Administration (NHTSA) does not currently recognize any fully self-driving cars in the United States[4], asserting that, “[e]very vehicle currently for sale in the United States requires the full attention of the driver at all times for safe operation.”[5]

 

Tesla’s cars use a combination of cameras, radars, and ultrasonic sensors to allow its Autopilot software to drive, park and change lanes with minimal human interaction.[6] To this suite of skills the new FSD software allows the vehicle to stop at intersections, perform left and right-hand turns, and make lane change automatically. [7]

 

The dangers posed by the new system are embodied in its suggestive name, Full Self-Driving.[8] FSD is only considered a Level 2 “partially automated” system by the standards of the Society of Automotive Engineers.[9] The NHTSA characterizes FSD as “Autosteer on city streets,” using the terminology for Tesla’s lane-keeping assistance feature.[10]Alternatively Elon Musk has mischaracterized FSD as a Level 5 “Full Automation” system, despite no such system existing anywhere in the world right now.[11]

 

Tesla is testing their new technology by placing the software into the hands of consumers, allowing them to absorb the risk of any malfunctions.[12] Who then is liable when a Tesla operating under FSD Mode hurts or kills another driver or pedestrian?

 

A Tesla vehicle was involved in the first known death involving a self-driving car.[13] Joshua Brown died after his Tesla hit the side of a semi-truck while in Autopilot mode.[14] Tesla stated that it was difficult for Autopilot to distinguish between the truck’s white trailer and the bright Florida sky.[15]

 

The NTSB’s final report on the incident they concluded that the truck driver was at fault, but also assigned some of the blame to the Tesla driver and Tesla for using a system that allowed drivers to take their eyes and focus off the road for a prolonged period of time.[16]

 

If an auto accident is due to a lack of appropriate maintenance, for example, and that maintenance was the responsibility of the owner, then the owner could be liable.[17] Similarly, if the operator of a self-driving vehicle fails to follow proper operating instructions, which was the case during the first Tesla autopilot fatality accident in May 2016, it may be difficult to hold the manufacturer liable for the accident and the resulting injuries or deaths.[18] In fact, the NTSB investigation into this incident found that human error was mostly to blame for the crash.[19] The NTSB final report concluded the truck driver was at fault but also assigned some of the blame to the Tesla driver and to Tesla for utilizing a system that allowed drivers to take their eyes and focus off the road for a prolonged period of time.[20]

 

Tesla’s Full Self-Driving version of Autopilot is problematic because it promises functionality to the end user, via Tesla’s marketing, that does not actually exist and could put the vehicle’s operator and those around them in danger.

 

The important liability-determining factor here is the expectation set by Tesla. Does Tesla advertise their products in a way that gives drivers the expectation that they can put the car on Autopilot and then cease to pay attention? If Tesla has either overtly or through implication sent the message to their customers that their vehicles are safe to use on Autopilot without supervision, and it turns out they’re not, then Tesla could be held liable for the injuries or deaths that result.

 

[1] See Faiz Siddiqui, Tesla is putting ‘self-driving’ in the hands of drivers amid criticism the tech is not ready, Washington Post (Oct. 22, 2020, 3:18 PM), https://www.washingtonpost.com/technology/2020/10/21/tesla-self-driving/.

[2] See Paul Eisenstein, Tesla’s beta test of “full self-driving” system worries drivers, pedestrians — and even owners, NBC News (Oct. 26, 2020, 3:25 PM),

https://www.nbcnews.com/business/autos/tesla-beta-testing-full-self-driving-system-worries-drivers-pedestrians-n1244787.

[3] Tesla Support,  https://www.tesla.com/support/autopilot (last visited October 27, 2020).

[4] See Automated Vehicles for Safety, https://www.nhtsa.gov/technology-innovation/automated-vehicles#faq-30706 (last visited October 27, 2020).

[5] Id.

[6] Full Self-Driving Hardware on All Cars, https://www.tesla.com/autopilot (last visited October 27, 2020).

[7] Andrew Hawkins, Tesla’s ‘Full Self-Driving’ beta test has caught the attention of federal safety regulators, The Verge (Oct. 23, 2020), https://www.theverge.com/2020/10/23/21530411/teslas-full-self-driving-beta-test-nhtsa.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Siddiqui, supra note 1.

[13] Barbara Liston and Bernie Woodal, DVD player found in Tesla car in fatal May crash, Reuters (Jul 1, 2016, 11:49 AM), https://www.reuters.com/article/idUSKCN0ZH5BW?mod=related&channelName.

[14] Id.

[15]Id.

[16] Nat’l Transp. Safety Board, NTSB/HAR-17/02, Collision Between a Car Operating With Automated Vehicle Control Systems and a Tractor-Semitrailer Truck Near Williston, Florida May 7, 2016 (2017),

https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1702.pdf.

[17]  Baum v. Fox Chrysler, Plymouth, Dodge, Inc., 517 N.Y.S.2d (App. Div. 3rd Dept. 1987) (where a motorist continued to drive her car despite her realization that there was a problem with the brakes, which had just been repaired).

[18] See Nicky Woolf, Tesla fatal autopilot crash: family may have grounds to sue, legal experts say, The Guardian (Jul 6, 2016, 7:00 AM) https://www.theguardian.com/technology/2016/jul/06/tesla-autopilot-crash-joshua-brown-family-potential-lawsuit.

[19] Uber’s self-driving operator charged over fatal crash, BBC News (Sep 16, 2020) https://www.bbc.com/news/technology-54175359.

[20] Nat’l Transp. Safety Board, NTSB/HAR-17/02, Collision Between a Car Operating With Automated Vehicle Control Systems and a Tractor-Semitrailer Truck Near Williston, Florida May 7, 2016 (2017),

https://www.ntsb.gov/investigations/AccidentReports/Reports/HAR1702.pdf.

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