Swords and Shields: Impact of Private Standards for Liability Determinations of Autonomous Vehicles

Private voluntary standards are playing an ever increasing role in the governance of many emerging technologies, including autonomous vehicles (AVs). Government regulation of AVs and other emerging technologies has lagged due to the “pacing problem” in which technology moves faster than government regulation, and regulators lack the first-hand information that is mostly in the hands of industry and other experts in the field who often participate in standard-setting activities. Consequently, private standards have moved beyond historical tasks such as inter-operability and definitions to now produce quasi-governmental policy specifications that address the risk management, governance, safety and privacy risks of emerging technologies. As the federal government has prudently concluded that promulgating government standards for AVs would be premature at this time and may do more harm than good, private standards have become the primary governance tool for these vehicles. A number of standard-setting organizations, including the SAE, ISO, UL and IEEE have stepped forward to adopt a series of inter-locking private standards that collectively govern AV safety. While these private standards were not developed with litigation in mind, they could provide a useful benchmark for judges and juries to use in evaluating the safety of AVs and whether compensatory and punitive damages are appropriate after an injury-causing accident involving an AV. This application of private standards would help solve two problems: (i) the lack of incentives for AV manufacturers to commit to conformance with the existing private standards for AV safety, and (ii) the concerns and uncertainty of AV manufacturers about potential liability standards (especially punitive damages) when their vehicles are inevitably involved in crashes resulting in injury or death. Drawing on several decades of relevant case law, this paper argues that a manufacturer’s conformance with private standards for AV safety should be a partial shield against liability, whereas failure to conform to such standards should be a partial sword used by plaintiffs to argue lack of due care.