Boosters of autonomous driving have been telling us for years about how much safer we’ll be in robot cars. They’ve told us that trusting in the little bug cars to get us to and fro would eliminate the very dumb things that humans do on the road.

The relentless PR and marketing hogswallop from tech firms about autonomous gains in safety versus humans has, so far, failed to persuade the public. A 2024 Pew Research study found 55% of Americans are wary of self-driving cars, citing safety concerns. This, no doubt, is due in large part to the many anecdotal reports of driverless cars doing dumb and dangerous things. Things that a student driver on a learner’s permit wouldn’t do.

No one doubts that cars driven by humans can be deadly. The National Highway Traffic Safety Administration estimates that nearly 40,000 people died in traffic crashes in 2024, the vast majority due to human error. But some accidents and injuries are caused by manufacturer defects, which is why managing the product liability risks of traditional car manufacturers is such a costly business. The General Motors ignition switch defect was one of the more notable fiascos in recent years.

But who’s liable when the driverless beetle creates mayhem, as it assuredly will?

Several approaches to autonomous vehicle liability were recently outlined in a paper by Brookings. Here’s the problem:

Liability for computer-driven accidents may depend on whether a reasonable human driver could have avoided it, if it falls within industry norms, or if it stems from a design or manufacturing flaw.

This, Brookings explains, is a new legal construct.

Under the “reasonable human driver” standard, the car manufacturer would be held liable for damages whenever its computer driver fails to avoid an accident that a reasonable (that is, competent, unimpaired, and attentive) human driver would have avoided. The victims would have to demonstrate that the computer driver’s behavior would have been unreasonable if engaged in by a human driver, but they would be compensated if they could make this showing.

In other words, if your space-age robot buggy does something stupid — just as stupid as a “competent, unimpaired, and attentive” human driver might have done — then this is “reasonable.”

“But your honor,” the lawyer for Driverless Inc. argues in court, “it is true that our Jetsonmobile ran off the end of the pier into the ocean. No passengers survived. As we all know. But here are examples of human drivers doing the exact same thing! And they weren’t liquored up!”

Have at it, judges and juries. And the tort bar, which has given a lot of attention to electric vehicles and data privacy, has something to say about driverless vehicles.

In a post about how autonomous vehicles might change the landscape of car accident lawsuits, Oakland personal injury firm Venardi Zurada LLP commented on the case: "At this point, autonomous vehicles are beholden to the same laws of traffic that their human counterparts are subject to. When they violate the rules of traffic, the company that operates the taxi can be held accountable.

"If the vehicle does something abnormal, like drag a pedestrian 20 feet while attempting to pull over, the company that owns and designed the robotaxi is responsible. Such lawsuits are generally filed under a theory of product liability ... so, there are multiple areas of personal injury law that this type of case touches upon."

Turns out that “disrupting” the auto industry lands you in the same spot on product liability as traditional car manufactures: dealing with legions of trial lawyers at every turn. What a cruel joke!

Elise Sanguinetti of Arias Sanguinetti Wang & Team LLP has handled many accident cases involving Teslas. "Litigating against Elon Musk is a tall task as his deep pockets create a wall of attorneys between us and any information that may help the people who have been seriously injured or even killed while driving a Tesla,' she told the Daily Journal in November. "Also, as electric cars are a newer technology, the technical portion of these cases can be difficult as the internal systems do not behave like a traditional car or truck."

On the reasonable driver approach in the Brookings article, we learn:

Current versions of self-driving cars are notorious for doing things that no reasonable human driver would do, such as driving on the wrong side of the road or driving into wet cement. In addition to providing recourse for injured parties, the reasonable human driver standard would provide an economic incentive for self-driving car manufacturers to provide cars at least capable enough to avoid these “stupid” mistakes. Indeed, it promotes innovation to create a self-driving car that performs at least as well as an unimpaired and competent human driver.

With driverless fleets now being tested in very limited numbers and in few cities (often with human backup drivers) we are far from the real test: The commingling of human and robot drivers in much more real world situations.

Prediction: When it becomes clear that autonomous vehicles can’t cut it in all driving situations — and compete with human drivers — we’ll hear calls for driverless only lanes and routes. HOV and bike lanes on steroids. For safety, of course.

And the pushback from human drivers will be massive.

Labor Day Postscript: Where will the cabbies go?

When a cab driver loses a job, where does he or she find work? Ride hailing company? They’re automating too.