Law Technology Today From the ABA Legal Technology Resource Center
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Your client has been involved in a collision with a driverless car and wants you to seek damages for personal injuries. Where do you start with a liability claim — the owner, the manufacturer of the vehicle, or the company that developed the automated vehicle technology software that’s fitted? And, there’s a long supply chain going even further back from the main players.
That’s just one of the challenges facing personal injury lawyers as new technologies move from development to mainstream. Techno-fear has faded into the background during the COVID-19 lockdown, with individuals of all ages as comfortable with video conferencing and online shopping as they were with smartphones, virtual assistants and satellite navigation.
Who or what is liable?
With the wider acceptance and adoption of technologies comes the inevitable risk of personal injury and more complex legal issues. At the simple end of the scale, smartphones have long been associated with accidents caused by driver distraction. Here, liability is relatively easy to prove.
But, how about an injury caused by a drone delivering a package to a customer. Do you blame the courier company, the drone dispatcher or any party in the supply chain that developed the drone?
And, if an individual asked their virtual assistant for advice on a DIY project, for example, and suffered an injury because of incorrect or ambiguous advice, could they sue the assistant, the manufacturer or the developer of the artificial intelligence system that powers the virtual assistant?
Personal injury or product liability claim
In the case of the driverless car, the US National Highway Traffic Safety Association reported advice that, in the event of an accident, the car was the driver, not the owner. Some lawyers are therefore concerned that any personal injury claims could turn into product liability claims, which are much more complex and costly to pursue. They also point out that insurance companies could use this factor to divert claims from owners of driverless vehicles to manufacturers.
Legislators in Great Britain attempted to solve this problem by insisting that owners of driverless cars should be covered by compulsory motor insurance, regardless of the fact that they were not driving the vehicle.
This would then point liability at owners and avoid product liability claims. The injured party would receive compensation via the motor insurance policy. It would then be the responsibility of the owner’s insurance company to try to recover any costs from the manufacturer or other parties in the supply chain.
So, there is a risk factor associated with new technologies. Early research on driverless cars found that they were involved in 9.1 accidents per million miles, compared with 1.9 accidents per million miles for conventional cars. On the flipside, driverless cars have the potential to reduce the risk of accidents due to drunk and drug-impaired driving or distraction while using a mobile phone or other in-car technology.
Related: Can Wearable Technology Help Your Personal Injury Claim?
Technology as evidence
Looking at technology from another perspective, lawyers have found that it can be useful for recording evidence or identifying factors that prove liability for an accident, making it easier to pursue personal injury claims.
Many drivers – including Uber or ride sharing app drivers, now fit dash cams to their cars, for example. The footage can provide vital evidence of dangerous driving by other parties or hazards that contributed to an accident. Some insurance companies offer customers discounts on their policies if they fit devices to their cars that record driving behavior and highlight dangerous practices such as excessive speed or fierce braking.
Again, this could provide valuable evidence if it proves that the injured driver was driving responsibly. Drivers of commercial trucks or public service vehicles are also likely to have recording devices in their vehicles that can be used to detect and prove dangerous driving.
Mobile technology – hero and villain
If mobile phone use is considered as a contributor to an accident, lawyers can use access to phone records and location technology to prove that a driver was using a phone at the time of the accident.
Mobile phones are also proving useful in gathering information and evidence at the scene of an accident. Drivers can use cameras on their phones to capture evidence of damage or the road conditions. Both parties can use phones to exchange essential contact and insurance information for use in making claims, a feature that has become very important during the COVID-19 period when social distancing is essential.
Technology is helping lawyers to progress personal injury claims that go to court, even if normal court business has been affected by COVID-19. To reduce the risk of virus transmission, many courts hold hearings by video conferencing technology. While there are still delays because of restricted court proceedings, technology can make a contribution to progress.
Smart technology needs smart lawyers
The growing adoption of technology looks set to continue. Smart technologies require minimal human intervention and that can add to the complexity of personal injury claims caused by technology. That means lawyers must be equally smart and use the latest technologies to get the best outcomes for their clients.
