The Future Of Tort Law In The Age Of Autonomous Vehicles And Emerging Technologies
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Category: General Law
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THE FUTURE OF TORT LAW IN THE AGE OF
AUTONOMOUS VEHICLES AND EMERGING
TECHNOLOGIES
Rishabh Sharma, LLM, MATS University, Raipur
ABSTRACT
The rapid advancement of autonomous vehicles (AVs) and emerging technologies presents significant challenges for traditional tort law frameworks, which were designed to address human-centric liabilities. This research focuses on the growing intersection of tort law and AV technology, emphasizing the shortcomings in existing legal frameworks addressing fault and liability when accidents occur amongst autonomous systems. Liability issues are also a focus of the study, which emphasizes the difficulties of separating product liability and negligence, of distributing responsibility across manufacturers, software developers, and operators (and whether companies can avoid liability by contracting out algorithms), and of underlying ethical dilemmas that result from algorithmic decision-making. Utilizing an interdisciplinary methodology, the paper explores case law studies (notably, the incidents involving Tesla’s Autopilot) and compares jurisdictional responses (including Germany’s black box requirement, and proposed U.S. reforms such as the implementation of strict liability against manufacturers). It even broadens the analysis to other new technologies, AI, robotics and drones, emphasizing necessary legal adaptation to deal with their complexity and autonomy. Proposed reforms incorporate adopting strict liability for manufacturers, setting clear performance standards, and promoting international coordination of regulation. The research further analyzes the potential impact of AVs on the insurance landscape, predicting a decline in personal auto insurance and calling for new frameworks of risk assessment. That research ultimately advocates for legal and policy changes that can balance innovation with accountability,, ensuring that tort law remains effective in safeguarding rights and promoting safety in an increasingly automated world. Keywords: autonomous vehicles, tort law, product liability, emerging technologies, legal reforms, artificial intelligence, insurance.
Introduction The development and implementation of autonomous vehicles (AVs) alongside other emerging technologies today are transforming our way of life, and it is a challenge for existing legal frameworks, specifically tort law, to keep pace with the vultures circling this high-profile, stateof-the-art endeavor. Tort law- the body of law that allows people to seek damages for a civil wrong and receive compensation for harms caused by others, Now confronts new difficulties in determining fault and delivering justice in an era in which human agency is increasingly connected with, if not actually replaced by, artificial intelligence and smart algorithms. We explore here the future of tort law in this changing environment. Background and Context Overview of Traditional Tort Law Principles Tort law, derived from the Latin term 'tortum' meaning twisted or wrong, is fundamentally concerned with breaches of duty that result in harm to others1. Operating on the principle of ubi jus ibi remedium (where there is a right, there is a remedy), its primary objective is to enforce rights and duties, providing a framework for compensation and accountability. Traditionally, tort law in the United States, and significantly influencing countries like India, places the burden of liability for car accidents on the human driver, as driver error accounts for approximately 90% of all accidents2. Core to tort law is establishing a breach of duty and demonstrating legal damage. However, as technology increasingly mediates and even dictates actions, these established principles face critical challenges. The rise of product liability law offers a framework for addressing harm caused by defective products3, but its application to autonomous vehicles, particularly regarding software defects, remains an evolving area. The Rise of Autonomous Vehicles and Emerging Technologies The rise of AVs promises to revolutionize transportation, offering the potential to drastically 1 Aman Shakya, The Development of the Law of Tort in India, 2 Journal of Legal Research and Juridical Sciences 1781–1 (2022). 2 Maria Lubomira Kubica, Autonomous Vehicles and Liability Law , 70 The American Journal of Comparative Law 1 (2022). 3 John Villasenor, Products Liability and Driverless Cars: Issues and Guiding Principles for Legislation Brookings (2014), https://www.brookings.edu/articles/products-liability-and-driverless-cars-issues-and-guidingprinciples-for-legislation/ (last visited Mar 21, 2025).
reduce accident rates. Experts estimate that the introduction of AVs could lead to an 80% to 90% decrease in accidents, potentially saving over 30,000 lives annually in the United States alone4. This is primarily due to the elimination of human errors such as distracted driving, which was responsible for 3,142 lives lost in 20205. The Society of Automotive Engineers (SAE) has defined six levels of vehicle automation, ranging from Level 0 (no automation) to Level 5 (full automation)6. While fully automated vehicles (Level 5) are still under development, Highly Automated Vehicles (HAVs) are expected to become more prevalent. The automotive software market is projected to reach USD 37.0 billion by 2025, reflecting the increasing importance of software in vehicle operation7. However, this increasing reliance on technology also introduces new risks, including software defects and cybersecurity vulnerabilities. Rationale and Significance Why the Convergence of Tort Law and Modern Technology is a Critical Issue The convergence of tort law and modern technology is a critical issue for several reasons. Firstly, current tort law frameworks are ill-equipped to address the complexities of assigning liability when accidents involve AVs8. With traditional tort law assigning liability to drivers, the shift towards autonomous systems raises questions about the responsibility of manufacturers, software developers, and even infrastructure providers. Second, the growing dependence of AVs on software is giving rise to new classes of defects that can result in crashes. Software bugs caused multiple automotive recalls from 2005 to 2015, with millions of affected vehicles, which bodes poorly for AV safety9. Even without a human driver to blame, AV crashes will happen because of software bugs or hardware failure, which makes a case for a new or overhauled legal regime all the stronger. Finally, not to mention the fact that cybercriminals can hack into your car's systems. In order to establish liability and incentivise
4 Kubika, supra note 2 at i39.
5 Distracted Driving 2020, Crash Stats (2022), https://crashstats.nhtsa.dot.gov/Api/Public/Publication/813309 (last visited Mar 21, 2025). 6 Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (2021), https://www.sae.org/standards/content/j3016_202104/ (last visited Mar 21, 2025).
7 Automotive Software Market Worth $37.0 Billion by 2025 - Exclusive Report by MarketsandMarkets,
Prnewswire (2020),https://www.prnewswire.com/news-releases/automotive-software-market-worth-37-0billion-by-2025--exclusive-report-by-marketsandmarkets-301064184.html (last visited Mar 21, 2025).
8 Kubica, Supra note 2.
9 J. Pancik et al., Auto recalls and software quality in the automotive sector, 5 ICST Transactions on Scalable Information Systems 154808 (2018).
safety during the era of self-driving cars and new technologies, this requires an overhaul of fundamental principles of tort law. Liability, if not properly addressed,could even delay or hinder the widespread adoption of driverless cars. Research Objectives and Questions This research aims to explore the evolving intersection of tort law and autonomous vehicle technology, addressing key questions such as: • What are the specific liability challenges posed by autonomous vehicles, and how do they differ from traditional motor vehicle accidents? • What gaps exist in current legal frameworks concerning accidents involving AVs, and what legislative or judicial reforms are necessary? • How should liability be apportioned among vehicle manufacturers, software developers, owners, and operators in cases involving HAVs? Methodology and Structure This paper will employ an analytical and interdisciplinary approach to legal research. It will critically examine existing tort law principles, relevant case law, and legislative initiatives related to autonomous vehicles. The research will also draw upon insights from fields such as engineering, computer science, and ethics to provide a comprehensive understanding of the technological, social, and legal challenges involved. This analysis will involve interpreting legal precedents, statutes, and other forms of law to construct applicable rules and principles. The structure of this paper will proceed as follows: after this introductory chapter, subsequent sections will delve into the liability challenges posed by AVs, analyze the gaps in existing legal frameworks, explore potential reforms and alternative compensation mechanisms, and conclude with a discussion of the future trajectory of tort law in the age of autonomous vehicles and emerging technologies. As autonomous vehicles and other emerging technologies continue to reshape our world, the need for a robust and adaptable tort law framework becomes ever more pressing. This study aims to address the growing public interest and debate regarding these important topics, to provide suggestions as to how trust, responsibility and safety can be achieved through the
development of more automated solutions. Historical Evolution of Tort Law in the Modern Context Tort law, the set of laws that deal with civil wrongs and provide remedies for such wrongs (usually in the form of monetary compensation), has dramatically evolved, in part due to technological changes. Understanding this historical evolution is crucial for anticipating the future of tort law in the age of autonomous vehicles and emerging technologies. This chapter identifies the traditional principles of tort law, the influence of technology, changes in legal interpretations, and developing trends that contribute to the contemporary context of tort law. Traditional Tort Law Principles Prior to the Industrial Revolution, personal injury accidents were infrequent and generally less severe, often involving simple tools and human or animal power10. Accidents typically occurred between individuals known to each other, such as family members or neighbors11. Legal claims were rare, influenced by factors like the absence of large corporations, lack of liability insurance, and restrictive rules of evidence12. The infrequency and nature of these incidents aligned with a system where holding individuals accountable was straightforward, often based on principles of strict liability. At the heart of traditional tort law lie doctrines of negligence, fault, and liability. Negligence, the failure to exercise reasonable care, became a cornerstone as society industrialized13. Establishing fault—demonstrating that a defendant's actions fell below the required standard of care—became essential for recovery. Liability, the legal responsibility for one's actions, was largely individual-centric. However, the rise of industrial accidents challenged these traditional principles, necessitating adaptations to address the complexities of a rapidly changing world. Impact of Technological Advancements The Industrial Revolution dramatically altered the landscape of personal injury law. Mechanization in factories, the advent of steam-powered riverboats, and the proliferation of 10 Donald G. Gifford, Technological triggers to tort revolutions: Steam locomotives, autonomous vehicles, and accident compensation, 11 Journal of Tort Law 71,76 (2018).
11 Id. at 5.
12 Id.
13 Id. at 7-10.
railroads led to a surge in accidents and injuries14. By the late 19th century, railroad accidents alone caused thousands of deaths and injuries annually15. This increase in both the frequency and severity of accidents placed immense strain on the existing tort system. Technological advancements impact personal injury law through several key variables: the frequency of injuries, the severity of injuries, the difficulty of proving liability, and the social utility of the technology16. These variables influence the choice between negligence, strict liability, and no-fault systems. The rise of large business enterprises, like railroads and manufacturing firms, provided a potential source of compensation for injured employees, marking an early intersection between technology and legal frameworks. Shifts in Legal Interpretations The surge in industrial accidents prompted significant shifts in legal interpretations. By the late 19th century, tort law generally required plaintiffs to prove negligence17. However, employers often successfully invoked defenses such as the fellow servant rule, assumption of risk, and contributory negligence to avoid liability18. These defenses, coupled with the requirement to prove negligence, made it exceedingly difficult for injured workers to recover damages. As technology advanced, legal doctrines adapted, sometimes unevenly, to address new challenges. Landmark cases such as Baltimore & Ohio Railroad Co. v. Goodman19 and Pokora v. Wabash Railway Co.20 reflect the judiciary's struggle to establish clear standards of care in the face of evolving technologies. Some states repealed the fellow-servant rule, and the Federal Employer’s Liability Act and workers’ compensation acts abrogated it21. This period marked a transition from individual fault towards a more nuanced understanding of liability in the context of technological advancements. Emerging Trends The workers' compensation statutes are one of the tort law's first responses to the increasing
14 Id at 8.
15 Id. at 6.
16 Id. at 2.
17 Id. at 21.
18 Id at 15.
19 Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66 (1927).
20 Pokora v. Wabash Railway Co., 292 U.S. 98 (1934)
21 Gifford, supra note 10, at 6.
prevalence of industrial accidents22. These statutes established a no-fault system of compensating injured workers, so that there was no need to show negligence, but also a cap on the amount of compensation. This was a radical departure from tort principles and towards enterprise liability. Then the automobile changed tort law again. That was an era when cars became widespread but no one thought much of the car accident, which, if you lost, could be a huge source of accidental injury, and laws were introduced that made sure you were responsible to have the financial responsibility to compensate the victim, and other states built systems to make it nofault. Additionally, the emergence of mass production of consumer products brought about the abolition of the privity requirement, which previously barred consumers from suing manufacturers directly for injuries suffered due to defective products. Strict products liability developed as a way to impose manufacturer accountability but would eventually wane and revert back to fault-based measures for design and warning defects. Modern concerns such as enterprise liability, especially with the widespread adoption of ride-hailing apps, are constantly reshaping the legal framework. The development of tort law provides tantalising insights into the relationship between technological innovation and legal reaction. From the transition from strict liability to negligence during the Industrial Revolution to the growth of no-fault systems and strict products liability, tort law has always adapted to the difficulties of new technologies. Autonomous vehicles and other new technologies are changing how tort law works in realtime, and understanding the historical lineage of historical tort doctrines is thus inescapable, in order to prepare for not just the future of tort law, but the law's trajectory into the future as both an evolutionary and revolutionary guiding voice for injuries and pursuit for safety. Autonomous Vehicles and the Shifting Paradigm of Liability The advent of autonomous vehicles (AVs) promises to revolutionize transportation, potentially reducing accidents and increasing efficiency.. However, this technological leap introduces complex legal challenges, particularly in assigning liability when accidents occur in the absence of a human driver. With projections estimating that AVs could account for 75% of vehicles on the road by 2040, the need for a clear and comprehensive legal framework is
22 Gifford, supra note 10 at 23.
becoming increasingly urgent23. This chapter explores the shifting paradigm of liability in the age of autonomous vehicles, examining key technological aspects, liability challenges, relevant case studies, and the evolving role of manufacturers and software developers. It argues that traditional tort law principles are inadequate to address the unique complexities posed by AVs and that extending product liability to defective software components is essential for ensuring accountability. Defining Autonomous Vehicles Autonomous vehicles are generally defined as those capable of performing driving tasks without human input, but the level of autonomy can vary significantly24. SAE International Standard J3016 provides a widely accepted classification system, distinguishing between six levels of automation ranging from 0 to 5. Table 1: SAE Levels of Automation Level Driver Only: No automation; the human driver is responsible for all driving tasks. Assisted: The automated system can assist the human driver within defined use cases. Partial Automation: The automated system conducts multiple parts of the driving task, but the human continues to monitor the driving environment. Conditional Automation: The automated system conducts multiple parts of the driving task and monitors the driving environment within defined use cases. The human driver must be ready to take back control when requested. High Automation: The automated system conducts the driving task and monitors the environment within defined use cases. The human need not take back control within these use cases but assumes control outside of them. Full Automation: The automated system performs all driving tasks within all use cases that a human driver could perform them.25 23 Xi Zhu, Zhiqiang Gu & Zhen Wang, Ethical challenges and countermeasures of Autonomous Vehicles, 233 E3S Web of Conferences 04016 (2021).
24 Kubica, supra note 2, at i39-i69.
25 Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (2021), https://www.sae.org/standards/content/j3016_202104/ (last visited Mar 21, 2025).
AVs can also be categorized as fleet-operated robotaxis or personal vehicles with "hands-off systems"26. Furthermore, Dorothy Glancy distinguishes between self-contained autonomous vehicles and interconnected autonomous vehicles, with the latter using communication with infrastructure or other vehicles27. Jack Boeglin distinguishes between discretionary and nondiscretionary vehicles. Discretionary vehicles permit the freedom and personal autonomy of their users to the greatest extent possible, while Non-discretionary vehicles impede their users’ selection of route, determination of driving style, or ability to switch the self-driving function off and take control of the vehicle28. Each type presents different implications for liability. Liability Challenges The absence of a human driver in AV accidents raises novel challenges for establishing fault. Traditional negligence principles, which focus on the actions of a human driver, are difficult to apply when an AV malfunctions or makes an error in its programming. The ethical dilemmas programmed into autonomous vehicles also adds to the challenge of assigning liability. A key challenge lies in distinguishing between product liability and traditional negligence.
Product liability claims typically focus on manufacturing defects, design defects, or failures to warn. Design defects often hinge on the availability of a "reasonable alternative design (RAD)"29. However, proving a design defect in an AV can be complex, requiring expert testimony to demonstrate that the vehicle's software or hardware deviated from industry standards or that a safer alternative design existed. In some cases, manufacturer negligence can be argued, particularly regarding the marketing of AV capabilities30. Furthermore, even when automation is engaged, difficulties arise in apportioning fault between the technology and the driver, especially in states with comparative negligence laws31. The "third-party doctrine," which grants easier access to personal data stored by someone other than the data subject, also poses a challenge to privacy protection in the context of AVs.
26 J D Carolyn Casey, AUTONOMOUS VEHICLE LITIGATION EXPERT INSTITUTE (2024),
https://www.expertinstitute.com/resources/insights/autonomous-vehicle-lawsuits/ (last visited Mar 21, 2025).
27 Kubica, supra note 2, at i47.
28 Kubica, supra note 2 at i58.
29 Kubica, supra note 2 at i60
30 Casey, supra note 24
31 Casey, supra note 24
Case Studies and Comparative Analysis Several early cases involving AVs have begun to shape the legal landscape. Tesla Autopilot Cases: • In Huang v. Tesla32, Tesla settled a wrongful death lawsuit with the family of Walter Huang, who died in a Tesla Model X crash while Autopilot was in use. The family alleged safety and design defects, focusing on Tesla's marketing, which led consumers to believe Autopilot was safe without driver intervention. Internal emails showed Tesla executives and engineers became complacent while using Autopilot. The NTSB found Tesla's technology partly to blame, with the forward collision warning and automatic emergency braking systems failing. However, Tesla attorneys argued that Huang was an inattentive driver, playing mobile games on his phone at the time of the crash, and moved to seal the settlement terms. • In Molander v. Tesla Inc.33, a jury found Tesla not at fault in a fatal crash where a car with Autopilot engaged swerved off the road. The plaintiffs argued a manufacturing defect in Autopilot caused an "excessive steering wheel angle command," citing an internal Tesla safety analysis. Tesla argued human error, claiming the driver's alcohol consumption affected his ability to drive. • In a Florida case, a judge ruled that there is "reasonable evidence" that Elon Musk and other managers knew the Autopilot system was defective, allowing a wrongful death case to proceed with punitive damages claims against Tesla34. Comparative Jurisdictional Approaches: Different jurisdictions are taking varying approaches to autonomous vehicle liability. Germany amended its "Road Traffic Law" in 2017, requiring AVs to install black box devices to record vehicle operation and clarify responsibility for traffic accidents35. The law stipulates that if an
32 Huang v. Tesla, Inc., No. 19-cv-04533, 2019 WL 3418516 (N.D. Cal. July 29, 2019)
33 Molander v. Tesla Inc., No. 2023-CAB-004499 (D.C. Super. Ct. filed July 18, 2023)
34 Tesla Inc. v. Kim Banner Estate of Jeremy Banner, No. 4D2023-3034, 2025 WL 856525 (Fla. Dist. Ct. App. Feb. 26, 2025). 35 Xi Zhu, Zhiqiang Gu & Zhen Wang, Ethical challenges and countermeasures of Autonomous Vehicles, 233 E3S Web of Conferences 04016 (2021).
accident occurs under human driving, the driver is responsible, but if the artificial intelligence system causes the accident, the car manufacturer assumes responsibility. In the United States, the NHTSA recommends that states not give permission for the public use of AVs until further conclusive research is done36. Several scholars have proposed alternative liability frameworks. Abraham and Rabin advocate for the implementation of manufacturer enterprise responsibility (MER), similar to workers’ compensation, while David Vladeck proposes "common enterprise liability," with strict joint and several liability for both the automaker and the part maker37. Mark Geistfeld proposes federal regulations to remedy the lack of legal uniformity, entrusting the NHTSA to create regulations governing the reasonable safety of automated driving technologies38. The Role of Manufacturers and Software Developers With the shift from human drivers to automated systems, the role of manufacturers and software developers in ensuring safety and shouldering liability becomes paramount. The interface between technological design and legal responsibility is at the heart of this evolving paradigm. Manufacturers must ensure that AVs are designed, manufactured, and tested to the highest safety standards. This includes implementing robust cybersecurity measures to protect against hacking and unauthorized control of the vehicle. Software developers, in particular, bear a significant responsibility for the safety and reliability of AV software. Errors in algorithms, incorrect numerical computation, and missing condition checks have been identified as root causes of AV failures39. Extending product liability to defective software components, as proposed by Michael Rustad, would ensure accountability for injuries and deaths caused by defective AV software40.
36 Kubica, supra note 2 at i42.
37 David C. Vladeck, Machines Without Principals: Liability Rules and Artificial Intelligence, 89 Wash. L. Rev. 117, 129 n.39, 146–48 (2014). 38 Mark A. Geistfeld, A Roadmap for Autonomous Vehicles: State Tort Liability, Automobile Insurance, and Federal Safety Regulation, 105 Calif. L. Rev. 1611, 1612 (2017)
39 John Villasenor, PRODUCTS LIABILITY AND DRIVERLESS CARS: ISSUES AND GUIDING PRINCIPLES FOR
LEGISLATION BROOKINGS (2014), https://www.brookings.edu/articles/products-liability-and-driverless-carsissues-and-guiding-principles-for-legislation/ (last visited Mar 21, 2025).
40 Id.
Regulatory proposals, such as the Privacy by Design system, aim to embed privacy into IT systems and business practices41. The U.S. government also guarantees that entities do not make deceptive claims or mislead the public about the performance capabilities and limitations of AV technologies42. Algorithmic transparency is also vital for accountability, and legal frameworks must hold manufacturers accountable for ethical consideration. The integration of autonomous vehicles into society presents both immense opportunities and significant legal challenges. As AV technology continues to advance, it is crucial to adapt existing legal frameworks to address the unique issues of liability in the absence of a human driver. Traditional tort law principles are inadequate to address the complexities posed by AVs, necessitating a shift towards product liability and greater manufacturer responsibility. The case studies examined, particularly those involving Tesla's Autopilot system, highlight the difficulties in establishing fault and the potential for manufacturers to be held liable for design defects and misleading marketing. Comparative analysis of different jurisdictional approaches reveals a global effort to grapple with these challenges, with some countries implementing specific regulations and ethical guidelines for AVs. As a Stanford law professor suggests, the future will likely see a shift from driver negligence claims to product defect claims in AV cases, with technical risk/utility issues dominating. Ultimately, as technology and morality converge, ethical choices will determine whether autonomous vehicles become a beacon of progress or a source of ethical dilemmas. Emerging Technologies Beyond Autonomous Vehicles The rise of autonomous vehicles represents just one facet of a broader technological revolution reshaping our world. Artificial intelligence (AI), robotics, and drone technology are rapidly evolving and permeating various sectors, promising increased efficiency and innovation but also presenting novel challenges to established legal frameworks, particularly in tort law. This chapter explores these emerging technologies, focusing on the legal complexities they introduce and the ongoing efforts to adapt existing legal doctrines to address these challenges.
41 Kubica, supra note 2 at i56.
42 National science. & technology councIl & U.S. department of transportation, ensuring amerIcan leadershIp In automated vehIcle technologies. Automated vehIcles 4.0 (2020) www.transportation.gov/sites/dot.gov/files/docs/policy-initiatives/automatedvehicles/360956/ensuringamericanleadershipav4.pdf
Overview of Other Emerging Technologies Beyond autonomous vehicles, the applications of AI, robotics, and drones are expanding rapidly. AI is being integrated into systems that perceive their environment, make decisions, and perform tasks without direct human intervention. These systems leverage machine learning, computer vision, and natural language processing to enhance automation and decision-making across diverse fields43. • Drones: Drones, initially developed for military applications, are now widely used in civilian sectors such as agriculture, delivery services, surveillance, and infrastructure inspection. They utilize GPS and real-time obstacle detection for navigation, and computer vision for object recognition. • Robotics: Modern robotics extends far beyond traditional industrial automation. AIdriven robots are being deployed in healthcare for surgery and patient care, in logistics for warehouse management, and even in domestic settings for cleaning and assistance. These robots often employ adaptive manufacturing techniques and predictive maintenance through AI. • AI Applications: Standalone AI systems are also becoming prevalent in areas like fraud detection, medical diagnostics, and algorithmic trading. These systems rely on sophisticated algorithms and vast datasets to make decisions that can have significant consequences. But such technologies are not risk-free. These systems are so complex, opaque, and autonomous that they challenge traditional ideas of liability and accountability. This requires a recalibration of current legal principles that enable sound, fair and efficient compensation for prospective harm. Legal Challenges in Applying Tort Principles AI, robotics, and drones raise various ambiguities and potential conflicts with established
43 Manish Tiwari & Rohit Maheshwari, AI in Autonomous Systems: Enabling Intelligent Automation and
Decision-Making, in The AI Odyssey: Ethics, Innovation, and Beyond 8–12 (2023), https://cpur.in/iqac/naacdocuments/other/Consolidate/AI%20in%20Autonomous%20Systems%20Enabling%20Intelligent%20Automati on%20and%20Decision-Making.pdf (last visited Mar 23, 2025).
doctrines of tort law. One key question is establishing liability when these technologies harm us. One of the strongest principles under traditional tort is that you need to find either negligence or intent, and that becomes much more difficult when dealing with autonomous systems. AI algorithms, especially those utilizing deep learning, are complex, making it difficult to track what specifically led to an accident or injury. These systems are constantly updated and learn from failure, so we cannot predict how it would behave or when it may fail. Moreover, cybersecurity weaknesses can open the door for malicious agents to undermine these systems, producing potentially disastrous consequences. Consider the challenge of establishing liability in the following scenarios: • A drone that is delivering a package runs into trouble and crashes, resulting in property damage or injury to a person. Was the accident caused by a manufacturing defect, a software glitch or an error in the drone’s programming? • A surgical robot malfunctions during an operation, causing harm to the patient. Was the surgeon negligent in using the robot, or was the manufacturer responsible for a defect in the robot's design or programming? • An AI-powered fraud detection system incorrectly identifies a legitimate transaction as fraudulent, causing financial harm to the customer. Was the algorithm biased, or was there a flaw in the data used to train the system? These scenarios illustrate the difficulties in applying traditional tort principles to emerging technologies. In response, legal scholars are exploring alternative approaches, such as strict liability and the application of agency law principles. Anat Lior, in her Mitchell Hamline Law Review article, advocates for treating AI entities as AI agents of humans, thereby enabling the application of the respondeat superior doctrine. This approach would hold human principals responsible for damages caused by their AI agents, ensuring victims receive remedy and fostering the responsible evolution of the AI industry44. 44 Lior, Anat (2020) "AI Entities as AI Agents: Artificial Intelligence Liability and the AI Respondeat Superior Analogy," Mitchell Hamline Law Review: Vol. 46 : Iss. 5 , Article 2.
The European Parliament's Expert Group on Liability and New Technologies suggests that operators of high-risk AI-driven technologies, such as robots in public spaces, should be subject to strict liability45. This approach would shift the burden of proof to the operator, requiring them to demonstrate that they took adequate precautions to prevent the harm. Interdisciplinary Perspectives An interdisciplinary approach is essential to tackle the legal challenges thrown by emerging technologies that is not only the insights derived from tech experts but also of legal scholars and policymakers. People with technical expertise can offer better insights into what these technologies can and cannot do, which can help legal scholars craft the right kind of legal frameworks. They can also help to create industry standards for safety, security, and transparency. Legal scholars may dissect current legal doctrines and suggest either adjustments to them or entirely new legal schemas to adequately address the novel problems introduced by these technologies. They can also use lessons from other areas of the law, such as product liability, contract law, and intellectual property law, to craft comprehensive solutions. The role of policymakers is critical in the overall direction taken for the regulation of these technologies. They have the power to craft policies that encourage innovation while safeguarding public safety and rights. They can also encourage international collaboration to align regulatory frameworks and promote the responsible advancement of these advancements. The European Parliament report emphasizes the need for operators to comply with adapted duties of care regarding system choice, monitoring, and maintenance46. Furthermore, producers should design, describe, and market products to enable operators to comply with these duties, including equipping technologies with logging features to facilitate the establishment of risk. Comparative Insights Different legal systems are responding to the challenges of emerging technologies in various
45 Liability for Artificial Intelligence, European Commission (2019),
https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/JURI/DV/2020/01-09/AIreport_EN.pdf (last visited Mar 23, 2025).
46 Id at 53.
ways. The European Union, for example, is actively considering adjustments to its liability regimes to address the unique characteristics of AI and other digital technologies47. The European Parliament's report proposes several key recommendations, including: • Strict Liability: Implementing strict liability for operators of high-risk AI systems in public spacee. • Duties of Care: Adapting duties of care for operators regarding system choice, monitoring, and maintenance. • Manufacturer Liability: Holding manufacturers liable for defects, even after placing the product on the market. • Compulsory Insurance: Requiring compulsory liability insurance for high-risk AI systems. • Facilitation of Proof: Providing victims with facilitation of proof, such as access to data logs.48 These recommendations showcase a proactive stance towards regulating emerging technology landscapes whilst seeking to maintain a balance between encouraging innovation and ensuring public safety. The approach to emerging legal questions posed by these technologies found in the United States and other legal systems has been more cautious, in the form of existing tort law principles applicable to that technology. That said, several jurisdictions are just starting to evaluate tailored bills on topics ranging from drone regulation to autonomous vehicle liability. Such differences show what a challenge it can be to regulate new technology, and the necessity of continuing dialogue and collaboration between legal systems to create effective and harmonised legal approaches. As with all things that can have some inherent good, emerging tools like AI, robotics, drones, etc. They also raise a number of new challenges for established principles of tort law. These
47 Id.
48 Id.
challenges make a good case for multi-pronged solutions, ranging from revisiting established legal doctrines, developing novel legal paradigms, or creating interdisciplinary alliances among various actors in the data ecosystem. Through exchange of ideas and mutual learning, we can ensure that these technologies are developed and deployed thoughtfully, protecting individual rights and promoting public safety. Policy Implications and Future Legal Reforms Autonomous vehicles (AVs) and new technologies are opening up opportunities and challenges that represent a paradigm shift for tort law; the justice system should take proactive steps in anticipation of challenges before they arise. This chapter then discusses the policy implications of those advancements, and suggests certain legal reforms that could be explored in response to the unique challenges that they create. It explores the inter-relation of such reforms, insur-ance practice and corporate liability and ends with suggestions for future research to be undertaken concerning these facets of our society. Current Regulatory Landscape The existing legal and regulatory landscape concerning AVs is fragmented and evolving. Several countries and regions have taken different approaches to regulating AVs, reflecting varying levels of technological adoption and differing priorities. Germany, for instance, amended its road traffic regulations in 2017 to permit conditionally automated driving (SAE Level 3), allowing drivers to engage in peripheral activities while the vehicle is in operation, provided they are ready to take control when prompted49. Furthermore, the ‘Autonomous Vehicle Authorisation and Operation Directive’ (AFGBV) from 2022 established a legal framework for SAE Level 4 vehicles, permitting operation without a driver physically present in pre-approved areas, subject to external technical supervision50. In contrast, the United States lacks a unified federal framework, with individual states determining special licenses and regulations. China employs a system of exemptions and regional regulations, with Shenzhen permitting fully autonomous vehicles on specific roads
49 Mercedes-Benz Group, Automated and autonomous driving. legal framework.: Mercedes-Benz Group,
https://group.mercedes-benz.com/innovation/case/autonomous/legal-framework.html (last visited Mar 30, 2025).
50 Id.
from 2022. At the EU level, highly automated vehicles are permitted but restricted to authorized routes. Moreover, UN regulation in 2023 allowed Level 3 cars to travel up to 130 km/h on motorways. These regulatory differences underscore the need for international harmonization to facilitate the safe and efficient deployment of AV technology.51 Proposed Legal Reforms The integration of AVs into society necessitates a re-evaluation of traditional tort law principles. A critical consideration is the allocation of liability in the event of an accident. Under the current negligence-based system, determining fault in accidents involving AVs can be complex, requiring analysis of software code, sensor data, and decision-making algorithms. One proposed reform involves shifting towards a strict products liability setting for AVs52. This approach would hold manufacturers liable for defects in design or programming that contribute to accidents, incentivizing them to prioritize safety and invest in product improvement. However, this shift could significantly increase vehicle premiums, potentially doubling or tripling the average cost53. Accident frequency would need to decrease by approximately 75 percent for vehicle premiums to remain at current levels54. Furthermore, to address the complexities of AV technology, legal reforms should incorporate clear definitions of "reasonable care" for autonomous systems, establishing performance benchmarks and testing standards. An interdisciplinary, collaborative effort to specify the types and formats of data needed for risk assessment and to collect that data is also essential. Emphasis should also be given to establishing ethical guidelines, such as those developed by the interdisciplinary ethics committee in Germany, focusing on enhancing the safety of all road users, protecting individuals, and ensuring data sovereignty55. Interplay with Insurance and Corporate Liability Legal reforms in the realm of AVs will inevitably impact insurance practices and corporate liability. As AV technology advances, the traditional role of personal auto insurance may
51 Id.
52 Michael Bryant Stienstra, Jonathan J. Charak & Wenwen Salerno, Automated Vehicles and the Insurance Industry Casualty Actuarial Society, https://www.casact.org/sites/default/files/2021- 02/pubs_forum_18spforum_01_avtf_2018_report.pdf (last visited Mar 30, 2025).
53 Id at 7.
54 Id.
55 Supra note 49.
diminish, with liability shifting towards manufacturers and technology providers. KPMG's analysis suggests that the personal automobile insurance sector could shrink significantly, potentially falling to less than 40 percent of its current size within 25 years, due to declining accident frequency56. Morningstar’s September 2024 report suggests that AV could potentially render personal auto insurance obsolete57. This transition necessitates the development of new insurance models that cover product liability and technology-related risks. Insurers may abandon this line of business due to declining volume and returns. Furthermore, actuarial models will need to adapt to the unique risk profiles of AVs. Currently, insurance pricing models are heavily influenced by individual driving behavior, which becomes less relevant in the context of autonomous systems58. Actuaries will need to develop new techniques for pricing risk, incorporating data on vehicle performance, software reliability, and environmental factors. Insurers anticipate that legal systems will have the largest impact in determining fault of an accident (68%)59. Insurers must better understand the technology to accurately determine its impact. The shift to products liability could lead to increased premiums, but it also encourages manufacturers to internalize the costs of accidents and invest in safer technology. However, policymakers must consider the potential for misaligned incentives, as manufacturers responsible for claim settlements may face conflicts between cost control and claimant compensation. Future Directions Future research and evolving legal practices should focus on several key areas. Firstly, continued monitoring of AV accident data is essential to refine risk assessment models and evaluate the effectiveness of legal reforms. Secondly, further exploration of ethical considerations is needed to address complex issues such as algorithmic bias and decisionmaking in unavoidable accident scenarios. Thirdly, international collaboration is crucial to
56 Automobile insurance in the era of Autonomous Vehicles, KPMG (2015),
https://assets.kpmg.com/content/dam/kpmg/pdf/2016/06/id-market-place-of-change-automobile-insurance-inthe-era-of-autonomous-vehicles.pdf (last visited Mar 30, 2025). 57 Analyzing the implications of self-driving cars for the auto insurance industry, Morning Star (2024), https://www.actuarialpost.co.uk/downloads/cat_1/Morningstar- The_Impact_of_Self_Driving_Cars_on_Autonomous_Vehicle_Insurance.pdf (last visited Mar 30, 2025).
58 Stienstra, supra note 52.
59 Stienstra supra note 56.
harmonize regulatory standards and facilitate the seamless operation of AVs across borders. Lastly, multidisciplinary collaboration among manufacturers, technologists, policymakers, attorneys, risk managers, insurers, and actuaries is essential to address data collection, liability systems, and performance benchmarks. A collaborative relationship between insurers, manufacturers, and other stakeholders should be more direct, open, and cooperative. The evolution of AV technology is rapid, and legal practices must adapt accordingly. By proactively addressing the policy implications and implementing appropriate legal reforms, society can harness the benefits of autonomous vehicles while mitigating the associated risks.