The impact V2V safety systems will have on vehicle accidents and the practice of personal injury law
The future is here. The technology exists to allow our cars to talk to each other. Those participating in design, manufacture, and testing of the technology to make our cars smarter than us are getting a head-start on how this advanced technology will affect our industry. I think it is time that we sit down, buckle up, and wrap our heads around what the future holds.
Before I ventured into the legal field, I was an engineer for a large defense contractor, working on targeting systems for fighter planes. I was a first-hand witness to extreme technological advances in motion and object detection, GPS systems, and embedded-communication systems between vehicles and other devices. While these technologies have been around for decades in the military context, they are just now spilling over into the civilian and consumer arena. There are for sale today cars that can park themselves, cars that can warn us if someone is in our blind spot, and cars that can control braking if they detect an object before we do. As we all know from “human factors” testimony, human perception-reaction time is much slower than a computer’s.
While these advances in vehicle-safety systems seem impressive on the surface, they are severely limited in real-world applications. The systems that we see now, such as blind-spot detection systems and object detection systems, are based on a technology called “LiDAR.” Think of it as radar, but instead of sending out radio signals to detect objects in the field, the car sends out a laser light. As such, the car can only detect (and thus warn of) objects immediately adjacent to it, either in front, on the side, or behind.
Future technology attempts to do away with those limitations. Indeed, there has been design, manufacture, and pilot testing programs for what are called “Vehicle-to-Vehicle” (V2V) communications- safety systems. This article introduces the reader to those systems and provides an introduction to a discussion on the impact V2V systems will have on vehicle accidents and our industry.
Types of vehicle safety innovations intended to reduce collisions
While this article will focus on V2V safety systems, the National Highway and Transportation Safety Association (NHTSA) has been studying and piloting different systems that we will briefly discuss.
Vehicle-to-Infrastructure (V2I) systems are dedicated wireless-communications systems between vehicles and infrastructure objects, with sensors located in the vehicle, and co-located in infrastructure elements, such as road signs and traffic signals. The purpose of V2I would be to provide warnings, such as impending red-light violation warnings, curve-speed warnings, reduced-speed-zone warnings, stop-sign violation warnings, railroad-crossing warnings, and spot-weather warnings to the driver of a vehicle. (Harding, Powell, Yoon, Fikenstscher, Doyle, Sade, Lukuc, Simons, Wang, (August 2014) Vehicle-to-Vehicle communications: Readiness of V2V technology for application. Report No. DOT HS 812 014. Washington, DC: National Highway Traffic Safety Administration, pp. 32-33 [hereinafter “NHTSA V2V Report”]).
Vehicle-to-Vehicle (V2V) systems are systems with dedicated wireless-communications systems between vehicles. In V2V systems, the vehicle will collect data on its own vehicle, such as the vehicle’s position (GPS coordinates), motion (speed, direction, brake applied, etc.), and size. This information will be constantly updated and broadcast to all other vehicles with the ability to receive such information within a 300-meter radius in all directions. (NHTSA V2V Report, at 26). This includes vehicles not in any line of visual sight of the driver or occupants of the vehicle, such as multiple vehicles ahead, behind, and even around a corner. If an emergency or safety-triggering event occurs, such as hazard lights are illuminated, ABS activated, hard braking, or airbag-deployed event occurs on the vehicle, this data is broadcast to the other vehicles as well. The vehicles receiving these messages (called “Basic Safety Messages” [“BSM”]) will then convert the messages into a warning to the driver, or perform some automatic adaptive control of the vehicle to avoid a collision.
Crash scenarios that V2V systems are meant to prevent
As part of its research and eventual implementation of technology, the US Department of Transportation conducted an analysis of annual number of crashes, and identified 37 Pre-Crash Scenario Types that needed to be addressed. (See Najm, Sen, Smith, and Campbell, (Nov. 2002) Analysis of Light Vehicle Crash and Pre-Crash Scenarios Based on the 2000 General Estimates System. Report No. DOT HS 809 573. Washington, DC: National Highway Transportation Safety Administration) (see chart on page 84).
How V2V systems will work
Most of the 22 scenarios on page 84 can be broken down into three main collision scenarios, and the main types of scenarios that make up the vehicle accidents for which we represent Plaintiffs: (1) Rear- end Scenarios; (2) Lane-change Scenarios; and (3) Intersection Scenarios.
Rear-end collision scenarios
One example of a V2V system addressing a rear-end scenario is through a Forward Crash Warning (FCW). This method is straightforward, in that if a vehicle is approaching a vehicle that is stopped or decelerating, the lead vehicle will send a message indicating its positions/movement which will immediately warn the approaching vehicle of an impending possible crash, giving time for the driver to react or having the vehicle actively adapt and automatically slow down or come to a stop. Current sensor-based technology addresses this scenario, but presumably the V2V system will allow for many more variables. (NHTSA V2V Report, at 26-28).
Another example of a V2V system addressing a rear-end scenario is through an Emergency Electronic Brake Light Warning (EEBLW). We have all dealt with multiple-vehicle collisions. In this scenario, a lead vehicle suddenly brakes or decelerates, and an approaching vehicle has an obstructed view, either by an object in the road, or other vehicles behind the lead vehicle. The V2V system will alert the approaching vehicle of the emergency braking of any vehicles ahead of it within the 300-meter range, allowing the approaching vehicle much more time to begin slowing down or stopping in caution. (NHTSA V2V Report, at 26-28).
The most obvious V2V example of lane-changing scenario is currently addressed by the vehicle sensors warning a driver during the beginning of a lane departure that they are encroaching on the travel of another vehicle in their blind spot. The V2V system will go another step forward and be able to detect a vehicle that has, not yet, but will enter the vehicle’s blind spot.
An example of a more advanced application to the lane-changing scenario is the “Do Not Pass Warning.” In this scenario, a vehicle attempts to pass a vehicle by changing into an on-coming traffic lane, without full vision of any on-coming traffic. The V2V system will be able to detect traffic coming in the opposite direction and warn the driver of impending danger if they attempted to pass. (NHTSA V2V Report, at 27).
An example of an intersection application for the V2V system is the “Blind Intersection Warning” (BIW). The V2V system would be able to detect and warn the driver of a vehicle encroaching into the travel lane of another vehicle with whom they are crossing paths at a blind intersection or intersection without a traffic signal. This would also be applied to left-turn scenarios.
While these scenarios are not exhaustive of the V2V system applications, they present a lion’s share of the types of collisions we see in our practice. The V2V system, as stated above, will be designed to eliminate 81% of these types of collisions. So what will this mean for our industry?
Decrease in number of collisions and resulting “societal costs”
Data analyzed by NHTSA show that between 2005 and 2008, the 22 V2V scenarios accounted for 4,336,000 light vehicle crashes per year. Not all of those 22 scenarios are collisions where the personal injury/vehicle accident cases come from. Of the 22 scenarios, about 17 of those have critical application to our cases. These account for approximately 3,662,000 light vehicle crashes per year, and include rear-ends, lane changes, left turns, running red lights, head-on collisions, and intersection collisions. Those account for approximately 68% percent of light vehicle crashes. (NHTSA V2V Report, at 19).
This data is national data, and without analyzing the data taking into account how much of a contribution the state of California has, this author can simply offer that, across the board, in each state, V2V systems will potentially reduce the number of collisions by 68% in total. But that 68% represents closer to 90% of the vehicle crashes with which personal-injury attorneys deal. (This does not include product liability cases where, i.e., there was control loss of a vehicle due to vehicle malfunction.)
The NHTSA report also took into account the “societal costs” of the crashes resulting from these pre-crash scenarios. These are the comprehensive costs that account for goods and services that must be purchased and productivity that is lost as a result of motor vehicle crashes. Encompassed in these costs are the medical, emergency medical service, market productivity, household productivity, insurance administration, workplace productivity, legal and court, travel delay, and property damage costs. Added to these costs are value of a statistical life, the value of quality-adjusted life years, and pain and suffering. (NHTSA V2V Report, at 21).
A value called “functional years lost” has been measured for these collisions as well. Functional years lost is a non-monetary measure that sums the years of life lost to fatal injury and the years of functional capacity lost to non-fatal injury. (NHTSA V2V Report, at 21).
For the 22 pre-crash scenarios, a total of $274,929,000,000 has been estimated as societal costs, and 1,944,000 functional years lost as a result of collisions. (NHTSA V2V Report, at 20-21). Again, the V2V systems are being touted to address, significantly decrease, and ultimately eliminate these societal costs, and the jury verdicts and insurance payouts that go along with them.
Reducing products liability claims from the outset
The issue of legal liability for injury to property and persons is identified by the industry as a potential impediment to deployment of V2V systems. As sure as the world turns, all parties involved in the industry, public and private, will try their best to limit their liability. One of the easiest ways to limit liability is to focus on V2V technology as a “warnings” system, rather than as “vehicle control” systems. This means that instead of providing V2V technology that will ultimately control the vehicle, it will simply be a means of “warning” the driver/occupants of impending danger. NHTSA has determined that focusing on V2V technology on the “warning” side will not create new or unbounded liability exposure for the industry. By sticking to a “warning” system, instead of a “control” system, vehicle manufacturers hope to eliminate creating new issues of products liability for themselves and automotive component manufacturers. (NHTSA V2V Report, at 208).
As part of NHTSA’s research and analysis systems, a consortium of public and private industry participants called the Vehicle-Infrastructure Integration Consortium (VIIC) was tapped to consider V2V’s governance and liability implications. Even outside of the product liability implications for a V2V “control” system, the VIIC identified other liability issues dealing with V2V “warning” systems. They include:
- Whether and, if so, how V2V warning applications increase the risk of liability for OEMs, operators, and drivers;
- The need for Congress to put in place one or more legal mechanisms for distributing risk among OEMs, operators, divers, and other public and private stakeholders;
- Whether V2V warning applications will change the way the legal system assesses driver versus equipment error;
- Whether owners may be held legally accountable for shutting off or failing to properly maintain V2V warning systems; and
- Whether the human machine interface required for V2V warning systems will increase driver distraction in a way that will affect legal liability. (NHTSA V2V Report, at 209-216).
Government involvement can limit private liability
In order to protect themselves, the VIIC has identified examples of Federal liability-limiting mechanisms, such as preemption, immunity, indemnification, and other types of limitations on damages or ways to allocate risk towards government and away from the industry. VIIC asserts (rightly) that the greater the involvement by the government (in regulation, design, and implementation of V2V systems), the less likely the private-industry participants will be challenged, or exposed to liability for harm to property or persons.
This is because the federal government can use its arsenal of mechanisms to limit liability to private-industry participants, as it has done in previous industries. For example, it can use explicit and implicit preemption, as it has done with the Federal Motor Vehicle Safety Act. Anyone who has tried a products-liability case related to vehicle-safety systems defects has run up against the Federal Motor Vehicle Safety Standards and defense preemption arguments. The preemption argument in a nutshell is that “the Federal government has adopted safety standards, and therefore the lawsuit conflicts with the particular FMVSS, and is therefore preempted.”
The government has also in the past used contractual indemnification via contract or agreement. For example, in the case of the FAA, the government has provided contractual indemnification for the contractors providing hardware and software to update the FAA’s air traffic control system. Another vehicle is statutory immunity, such as under the Federal Volunteer Protection Act (NHTSA V2V Report, at 211).
Capping liability is a mechanism that has been used by the federal government in the past, such as the Amtrak Reform and Accountability Act of 1997 which limits the damages from passenger claims to $200 million from a single railway incident, or the Oil Pollution Act of 1990, passed after the Exxon Valdez spill, making oil companies responsible only for the first $75 million of liability claims from businesses and organizations affected by a spill. The federal government can also regulate and require insurance pools for the industry participants. (NHTSA V2V Report, at 211).
Any scenario regarding government involvement to reduce the risk of liability to industry participants would likely be a hybrid scenario. Any and all such programs would require Congressional approval, so expect heavy lobbying by potential industry participants to have some government involvement and attempt to eliminate liability. The more likely scenario is very limited government involvement, and likely not more than current DOT involvement. For NHTSA, however, the concern is whether or not the public and private entities will want to be involved in provisions of V2V communications systems, or will agree to move forward with deployment of V2V systems if DOT does not seek and Congress does not approve some form of liability limiting/risk sharing program. (NHTSA V2V Report, at 212).
Will most collision lawsuits turn into products liability claims?
NHTSA foresees that the complexity of the V2V systems will be somewhat of an added protection to liability. Under traditional product-liability tort-law theories, manufacturers will be responsible if they manufacture and sell a defective product that causes harm to a person or property, including liability for defective design, manufacturing defects, and inadequate-warning defects. (NHTSA V2V Report, at 212). According to the VIIC, there could be a number of potential product-liability claims that could be associated with V2V technologies. However, it has been suggested that it may be difficult to determine who is liable for a V2V system failing to perform as the driver expected, due to the complexity of the system and the number of parties involved.
As stated above, the V2V technology currently under consideration focuses on safety warnings, instead of vehicle control. With safety warnings, the responsibility will ultimately fall upon the driver to avoid a crash. It would be costly and very difficult for a driver to prove that an accident would have been avoided had the V2V system functioned properly. California’s “substantial factor” causation test, and its known problems, would be a huge impediment to limiting a driver’s liability in failing to avoid a crash, and shifting it to a product defect.
By sticking to strictly warning systems, V2V participants already have built-in liability protections that are found with on-board safety warning systems that are in today’s automobiles. Under the current framework of product-liability tort law, manufacturers have the ability to take steps to limit their legal liability stemming from such on-board systems through a variety of mechanisms previously discussed, such as compliance with applicable safety standards, contractual indemnification by suppliers, and dispute resolution/arbitration clauses applicable to suppliers and consumers. (Dykema, (March 12, 2009) Risk Assessment Report, under contract to VIIC (Policy work Order, Task 6, Deliverable 1). Docket No. NHTSA-2014-0022, pp. 34-38 [hereinafter “Dykema Risk Assessment Report”]). As with today’s on-board warning systems manufacturers, V2V manufacturers will use the “adequate consumer warnings and instructions” mechanism that is already in place. These warnings and instructions would emphasize the limited role of V2V safety warning technology and explain the limitations of the system in the foreseeable operating environment. (Dykema Risk Assessment Report, at 35).
What does this all mean to PI attorneys?
As drivers on the road, V2V warning systems present a significant advancement in the future of motor vehicle safety. The ability for vehicles to communicate with each other, and almost simultaneously warn drivers of impending dangers that are not visible to the naked eye will significantly decrease the number of collisions on the road. For personal-injury lawyers, as more and more vehicles use V2V technology (new vehicles, and old vehicles with after-market technology), this area of our practice will see a sharp decline. Unless we see a phenomenon tending to show that human reliance on electronic-safety warnings will decrease overall vigilance and attention while driving, it would seem that rear-end collisions, left-turn collisions, and lane-change collisions would decrease significantly.
For consumer advocates, the garden-variety vehicle collisions will not turn into product-defect cases because of the complexity of the systems, and potential government liability-limiting mechanisms, even with current tort law. Moreover, industry participants will do their best to lobby the federal government to use even more liability-limiting mechanisms. With V2V technology being focused on safety warnings rather than vehicle-control, product liability risks are cut even further. The onus will still be on the driver to avoid the collision.
While the picture painted by this article makes V2V technology sound like it will eliminate vehicle accidents, one caveat is that NHTSA has estimated that in order for V2V technology to penetrate the full fleet of vehicles on the road would take approximately 37 years. (NHTSA V2V Report, at 24). While that sounds a long time away, we all know time has a way of creeping up on us. Stay tuned.
Cioffi Remmer is an attorney at AlderLaw, representing plaintiffs in all areas of civil litigation, including catastrophic personal injury, wrongful death, premises liability, and insurance bad faith.
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