You will be provided with a reference and some statements. Please determine whether each statement is 'supported', 'unsupported', or 'unknown' with respect to the reference. Please note:
First, assess whether the reference contains any valid content. If the reference contains no valid information, such as a 'page not found' message, then all statements should be considered 'unknown'.
If the reference is valid, for a given statement: if the facts or data it contains can be found entirely or partially within the reference, it is considered 'supported' (data accepts rounding); if all facts and data in the statement cannot be found in the reference, it is considered 'unsupported'.

You should return the result in a JSON list format, where each item in the list contains the statement's index and the judgment result, for example:
[
    {
        "idx": 1,
        "result": "supported"
    },
    {
        "idx": 2,
        "result": "unsupported"
    }
]

Below are the reference and statements:
<reference>
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Is Lightning McQueen Liable? A Review of Civil Liability
Standards Among Autonomous Vehicle Manufacturers and
Drivers
Shannon Marini*
“I just drove the Tesla with both eyes closed.”1
I. INTRODUCTION
Technological advancements and the rise of artificial intelligence are shifting
the fantasy of self-driving vehicles into reality.2 Within the last decade, the
global demand for self-driving cars has skyrocketed.3 Although true self-driving
cars are not available for public consumption, vehicles equipped with automated
driving assistance systems (ADAS) are operated daily by drivers using autopilot
features.4 Manufacturing companies like Tesla advertise their autopilot technology as reducing the overall driver workload while simultaneously enhancing user

*

Suffolk University Law School, J.D. 2025; University of Pittsburgh, B.S. 2022. First, I would like to thank
the Suffolk University Law Review staffers for their hard work and contributions. I would also like to thank
my Note Advisor, Judge Michael Ricciuti, for his mentorship and guidance throughout my law school career. I
am deeply grateful to my family and friends, who have been with me through every step of my law school journey. Lastly, this Note is dedicated to my beautiful, intelligent, resilient mother, Pam Marini. Your endless
love, guidance, and belief in me have shaped me into who I am today.
1. GUCCI MANE ET AL., Both Eyes Closed, on DROPTOPWOP (Atlantic Recording Corp. 2017).
2. See Aaron H. Jacoby et al., On the Road with Generative AI: Key Legal Considerations for the Automotive Industry, ARENTFOX SCHIFF (July 26, 2023), https://www.afslaw.com/perspectives/managing-automotive-blog/the-road-generative-ai-key-legal-considerations-the [https://perma.cc/B3KE-LUZK] (identifying generative artificial intelligence’s recent prominence in automotive industry).
3. See Advanced Driver Assistance System Market Size Is Projected to Reach USD 57.90 Billion by 2030,
Growing at a CAGR of 18.3%: Straits Research, GLOBENEWSWIRE (July 25, 2022), https://www.globenewswire.com/news-release/2022/07/25/2485296/0/en/Advanced-Driver-Assistance-System-Market-Size-is-projected-to-reach-USD-57-90-Billion-by-2030-growing-at-a-CAGR-of-18-3-Straits-Research.html [https://perma.cc/E2MA-FUQL] (highlighting global market for driver-assisting vehicles projected to increase to $57.9 billion by
2030).
4. See 1 MICHAEL L. RUSTAD, COMPUTER CONTRACTS § 1.02[10] (2023) [hereinafter RUSTAD 1] (stating
only ADAS-equipped vehicles currently available for purchase). For the purposes of this Note, the following
terms will be used to distinguish the types of motor vehicles discussed: (1) “traditional” will refer to cars that
cannot operate autonomously and lack ADAS technology; (2) “ADAS-equipped” or “ADAS” will refer to partially autonomous vehicles, equipped with ADAS technology but incapable of driving without human intervention; and (3) “autonomous vehicle (AV)” or “self-driving” will refer to vehicles equipped with autonomous technology known as automated driving system (ADS), which are capable of driving without human intervention.
See infra Section II.B.1 (clarifying differences between autonomy levels for traditional, partially autonomous,
and fully autonomous cars); 4 MICHAEL L. RUSTAD, COMPUTER CONTRACTS § A (2024) [hereinafter RUSTAD 4]
(defining AV by car with autonomous technology capable of driving without human control or monitoring).

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safety.5 Nevertheless, between 2019 and 2023, Tesla’s ADAS software caused
seventeen deaths and 736 accidents.6 The increase in both the usage of ADASequipped vehicles and the demand for self-driving technology pose significant
risks, and create many complex legal and ethical challenges.7
In the criminal context, some jurisdictions have determined that the human
driver remains the responsible party in accidents involving ADAS vehicles despite using autopilot.8 For example, in 2019, a California judge sentenced Kevin
George Aziz Riad to two years of probation after he pleaded no contest to two
counts of vehicular manslaughter with gross negligence for causing a fatal car
accident while using Tesla’s autopilot feature, which ran a red light.9 Similarly,
in 2023, an Arizona judge sentenced Rafaela Vasquez to three years of probation
after her car’s self-driving feature failed to recognize a jaywalker, leading to pedestrian fatality.10 In civil litigation, two competing theories of liability have
emerged: the traditional negligence standard and the strict liability standard.11
5. See Autopilot and Full Self-Driving Capability, TESLA, https://www.tesla.com/support/autopilot [https://perma.cc/W27Z-XG6H] (suggesting autopilot reduces driver’s overall workload). Despite claims by Tesla’s
CEO, Elon Musk, Tesla’s driver-assistance-feature technology does not make its vehicles fully autonomous because human presence is still required. See Lora Kolodny, Tesla Autopilot Safety Probe by Federal Vehicle
Regulators Nears Completion, CNBC (Aug. 25, 2023), https://www.cnbc.com/2023/08/25/tesla-autopilot-safety-probe-by-nhtsa-nearing-completion.html [https://perma.cc/7EZW-TMD7] (comparing Tesla’s autopilot abilities with full self-driving systems not requiring human intervention); Jacoby et al., supra note 2 (addressing
differences between ADAS and self-driving cars).
6. See Faiz Siddiqui & Jeremy B. Merrill, 17 Fatalities, 736 Crashes: The Shocking Toll of Tesla’s Autopilot, WASH. POST (June 10, 2023), https://www.washingtonpost.com/technology/2023/06/10/tesla-autopilot-crashes-elon-musk/ [https://perma.cc/T37C-Z59C] (discussing recent data on accidents involving Tesla’s autopilot).
7. See Mbilike M. Mwafulirwa, The Automation Paradox, 59 TULSA L. REV. 361, 365 (2024) (questioning
liability analytical framework when vehicle drives itself); Linda Chiem, Transportation Cases to Watch in 2023,
LAW360 (Jan. 2, 2023), https://www.law360.com/articles/1554802/transportation-cases-to-watch-in-2023 [https://perma.cc/Z4R7-95XA] (portraying recent scrutiny nation’s vehicle safety administrators facing relating to
AV regulation). Congress continues to struggle to pass legislation on self-driving vehicles. See David Shepardson, U.S. Lawmakers Struggle to Find Deal on Self-Driving Cars, REUTERS (July 27, 2023), https://www.reuters.com/world/us/us-lawmakers-struggle-find-deal-self-driving-cars-2023-07-26/ [perma.cc/5PEY-EWFQ] (explaining delay ongoing for six years); infra Section II.D.1 (elaborating upon federal legislative struggles in passing
AV legislation).
8. See Tom Krisher & Stefanie Dazio, As a Criminal Case Against a Tesla Driver Wraps Up, Legal and
Ethical Questions on Autopilot Endure, SEATTLE TIMES (Aug. 15, 2023), https://www.seattletimes.com/business/while-a-criminal-case-against-a-tesla-driver-ends-legal-and-ethical-questions-on-autopilot-endure/ [https://perma.cc/5SBR-VK77] (detailing criminal autopilot case resulting in criminal liability); Lauren Smiley, The
Legal Saga of Uber’s Fatal Self-Driving Car Crash Is Over, WIRED (July 28, 2023), https://www.wired.com/story/ubers-fatal-self-driving-car-crash-saga-over-operator-avoids-prison/ [https://perma.cc/V83C-NVF2] (discussing imposition of criminal liability upon human occupant despite technology failure).
9. See Krisher & Dazio, supra note 8 (explaining Aziz Riad’s avoidance of prison).
10. See Smiley, supra note 8 (explaining self-driving criminal case with Uber).
11. See Chiem, supra note 7 (proffering two different theories of liability for civil cases). Accidents involving the cruise control feature illustrate how humans may remain liable in ADAS-equipped vehicle accidents.
See Mbilike M. Mwafulirwa, The Common Law and the Self-Driving Car, 56 U.S.F. L. REV. 395, 410 (2022)
(suggesting blameworthiness based upon human decision to turn on automated function). Nevertheless, determining liability during system failures in self-driving vehicles will likely create new federal regulations, state

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The traditional negligence standard shifts liability to the individual driver, based
on the theory that the human driver should bear sole responsibility.12 Meanwhile,
the strict liability standard views the manufacturer as responsible based on a
product liability theory because the defective product caused the underlying accident.13 In accidents involving both traditional and ADAS-equipped vehicles,
courts have little trouble applying the conventional negligence standard when
human behavior causes accidents; however, when self-driving cars become publicly available, courts will likely need a new approach to finding liability in situations where humans are not in complete control of their AVs.14
This Note will first explore the evolution and benefits of self-driving vehicles,
the different levels of vehicle autonomy adopted by the National Highway Traffic Safety Administration (NHTSA), and the NHTSA’s current Level 2 regulations.15 Next, this Note will summarize case law showing different theories of
liability involving negligent traditional vehicle accidents, explain suggested federal and enacted international regulations for AVs, and examine the increase in
accidents involving ADAS-equipped vehicles.16 This Note will then identify the
issues arising from the lack of uniformity across state regulations and suggest
potential options for future federal regulation.17 Finally, this Note will analyze

statutes, and case law. See Zal Phiroz & Nicolas Bezada, Legal Issues Loom for Driverless Trucking, LAW360
UK (Feb. 5, 2024), https://www.law360.co.uk/articles/1792782/legal-issues-loom-for-driverless-trucking [https://perma.cc/Q25B-L935] (considering future legal issues involving self-driving trucks and cars).
12. See Mwafulirwa, supra note 11, at 406-07 (discussing ordinary liability standard for traditional vehicle
crashes imposes duty on human); see also Krisher & Dazio, supra note 8 (highlighting Tesla’s position humans
still need to maintain supervision of vehicle). Some believe that Tesla adequately represents its vehicles’ limited
autopilot ability and that the common-law action res ipsa loquitur should be used to prove negligence claims
against the human occupants of the car. See Mwafulirwa, supra note 7, at 403 (discussing how elements of res
ipsa loquitur would apply in AV accident). Yet, this argument is primarily used for the current Level 2 ADASequipped vehicles available for consumption, and does not provide an adequate illustration of the common-law
action when the automobiles are completely driverless. See id. at 402-03 (pointing to Tesla’s current autopilot
feature).
13. See Mwafulirwa, supra note 11, at 402-03, 405 (identifying elements for strict liability and considering
AV manufacturers liable because of superior product knowledge); see also Mwafulirwa, supra note 7, at 402-03
(recognizing Tesla engineers should have awareness people will place significant reliance and trust on technology).
14. See Mwafulirwa, supra note 7, at 365 (noting no current statute addresses liability analysis when technology, rather than human, controls vehicles); see also María Lubomira Kubica, Autonomous Vehicles and Liability Law, 70 AM. J. COMPAR. L. i39, i40 (2022) (explaining defective product claims rare because 90% of
accidents result from human error); Taylor K. Hainley, Note, National Regulatory Framework for Autonomous
Vehicles: Why the United States Must Look Abroad to Find Answers, 52 GA. J. INT’L & COMPAR. L. 191, 208
(2024) (expressing lack of comprehensive U.S. regulatory systems in place for AV monitoring and development);
infra text accompanying note 33 (requiring continued human engagement with driving task while utilizing Level
2 ADAS features).
15. See infra Sections II.A-B (addressing evolution of AVs, advantages and disadvantages, defining terms,
and discussing NHTSA’s Level 2 regulations).
16. See infra Sections II.C-E (providing traditional vehicle accident caselaw, proposed domestic and enacted international regulations, and recent ADAS accidents).
17. See infra Section III.A (identifying issues with varying state legislation for AVs and proposing certain
federal AV regulations).

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whether defective product lawsuits against car manufacturers and the contributory negligence of occupants will become the future cause of action for self-driving car accidents.18
II. HISTORY
A. The Evolution and Impact of Self-Driving Cars
The 1939 Futurama exhibit at the World’s Fair introduced the idea of selfdriving cars to the public, a concept credited to General Motors.19 Research for
completely hands-free vehicle technology gained significant traction throughout
the twentieth century.20 Substantial improvements in AV technology influenced
the U.S. Department of Defense to establish the Defense Advanced Research
Projects Agency (DARPA) in 2002; DARPA later promoted self-driving car
competitions to continue funding technological advancements.21
Researchers and innovators want to advance research and introduce self-driving cars because they expect these vehicles to provide positive societal benefits.22
Self-driving cars purportedly enhance road safety, which is a significant advantage over traditional, human-driven cars.23 Human driver error accounts for
over 90% of all motor vehicle accidents.24 Experts anticipate self-driving cars
will reduce accidents 80%-90% by eliminating various risks associated with human distractions, such as drunk driving or texting while driving.25 Although
18. See infra Section III.B (analyzing future claims against AV manufacturer liability coupled with occupant’s contributory negligence).
19. See Alysson G. Oliveira et al., A Look at the Evolution of Autonomous Cars and Its Impact on Society
Along with Their Perspective on Future Mobility, 201 SMART INNOVATION, SYS. & TECHS. 583, 585-87 (2021)
(discussing General Motors’s display and intelligent roads concept).
20. See id. at 585, 587 (acknowledging first true self-driving car credited to Volkswagen’s Touareg for
processing road images ahead).
21. See Lisa Collingwood, Privacy Implications and Liability Issues of Autonomous Vehicles, 26 INFO. &
COMMC’NS TECH. L. (2017) (manuscript at 7), https://eprints.kingston.ac.uk/id/eprint/37341/1/Collingwood-L37341-AAM.pdf [https://perma.cc/W7AA-MDP8] (discussing rapid evolution of AVs since DARPA announced
funding); Oliveira et al., supra note 19, at 588 (explaining DARPA’s influence among American universities
creates different self-driving car scenarios for competitions).
22. See Alexandra DeArman, Note, The Wild, Wild West: A Case Study of Self-Driving Vehicle Testing in
Arizona, 61 ARIZ. L. REV. 983, 989 (2019) (addressing benefits of AVs).
23. See Kubica, supra note 14, at i39 (outlining different ways driver distractions lead to accidents); Benefits
of Automated Vehicles (AVs), ALL. FOR AUTO. INNOVATION, https://www.autosinnovate.org/initiatives/innovation/autonomous-vehicles/benefits-of-havs [https://perma.cc/9Z59-Y5BL] (stating driver behavior or error responsible for 94% of accidents).
24. See Kubica, supra note 14, at i39 (discussing various ways human error causes accidents); Benefits of
Automated Vehicles (AVs), supra note 23 (identifying humans’ primary reason for vehicle crashes). Alcohol or
drug consumption, distractions, and fatigue cause about 40% of all fatal vehicle accidents. See Kubica, supra
note 14, at i39 (listing remaining accidents happen from speeding, aggression, overcompensation, inexperience,
inattention, and slow reaction time).
25. See Kubica, supra note 14, at i39 (discussing experts’ anticipation of fatal vehicle accident reduction
with increased AV use); Collingwood, supra note 21, at 6 (discussing study predicting conversion of 10% of
vehicles to AVs will decrease accidents by 211,000).

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advocates anticipate accident reduction, self-driving vehicles might not be able
to predict how other human drivers, pedestrians, or cyclists act, which could increase roadway accidents—especially in this experimental era.26 Additionally,
given society’s growing dependence on technology, skeptics are concerned that
drivers will place too much trust in self-driving technology.27
B. The NHTSA’s Regulatory Authority over Vehicles
1. Classification of Vehicle Autonomy Levels
In 1966, President Lyndon B. Johnson signed both the Highway Safety Act
and the National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act),
thereby creating the NHTSA, a crucial provider of driver safety guidance on
American roads.28 In 2016, the NHTSA adopted the six automation levels described by the Society of Automobile Engineers (SAE) to categorize automobile
autonomy levels.29 The autonomy levels help distinguish between traditional
cars, ADAS-equipped vehicles, and self-driving automobiles.30 The NHTSA defines traditional vehicles as either Level 0 or Level 1 because both levels always
require human control.31 The NHTSA classifies ADAS-equipped vehicles as
26. See DeArman, supra note 22, at 991-92 (addressing risk factors for AVs). A foreseeable concern for
AV usage is the increasing likelihood of drivers being complacent, engaging in texting, or reading instead of
maintaining focus on the road. See id. at 992 (anticipating potential for humans to place too much trust in AVs).
27. See id. at 992 (identifying reliance on AV technology creates various concerns).
28. See Spencer A. Mathews, Note, When Rubber Meets the Road: Balancing Innovations and Public
Safety in the Regulation of Self-Driving Cars, 61 B.C. L. REV. 295, 302-03 (2020) (discussing NHTSA’s broad
authority in gathering information on vehicle crashes, defects, and compliance standards); see also 49 U.S.C. §
30111 (detailing Vehicle Safety Act). The Vehicle Safety Act grants authority to the NHTSA to proactively
ensure that vehicle technology performs in a way that “protects the public against unreasonable risk of accidents
occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk
of death or injury in an accident.” 49 U.S.C. § 30102(a)(9).
29. See Mathews, supra note 28, at 297 n.24 (discussing NHTSA’s adoption of SAE’s autonomy levels);
Automated Vehicles for Safety, NHTSA, https://www.nhtsa.gov/technology-innovation/automated-vehiclessafety [https://perma.cc/V9C3-ZRCT] (outlining different autonomy levels).
30. See Mathews, supra note 28, at 299 (detailing SAE’s levels of autonomy); Taxonomy and Definitions
for Terms Related to Driving Automation Systems for On-Road Motor Vehicles, SAE INT’L (Apr. 30, 2021),
https://www.sae.org/standards/content/j3016_202104/ [https://perma.cc/R9QJ-63NW] [hereinafter SAE] (defining different autonomy levels). The automation systems describe vehicles equipped with AV technology, which
perform either part or all of the dynamic driving task on a sustained basis. See SAE, supra (listing five levels of
automation). The levels are determined by the application of the features in any given instance of on-road operation. See id. (defining “on-road” to mean accessible roadways used by all road users). Each level is defined by
the specific role conducted by each of the three primary actors—the human user, the driving automation system,
and other vehicle systems and components—in their performance of the dynamic driving task. See id. (clarifying
“role” to mean expected role of given primary actor based on system in question). In essence, the levels are
based on how much of the dynamic driving task the automation system can consistently handle, whether a human
is required to take over in the event of a system failure, and the extent to which the operational design domain of
the automated system is constrained. See Mathews, supra note 28, at 299 (describing basis for creation of levels).
31. See Mathews, supra note 28, at 299-300 (explaining Level 0 cars lack any driver assistance features);
Automated Vehicles for Safety, supra note 29 (noting Level 1 provides continuous assistance with either

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Level 2, the highest level of autonomy the public currently has access to purchase
and use.32 Level 2 vehicles can maneuver and stop without human assistance but
require drivers to remain engaged and ready to take control.33 Although companies like Tesla advertise their products as fully autonomous, their products are
classified as Level 2 vehicles, and their technology is not yet capable of selfdriving.34
The last three levels—3, 4, and 5—include vehicles that are truly capable of
self-driving, which will likely start to appear on the public market in 2025.35 The
key difference between Level 2 and Levels 3, 4, and 5 vehicles is the distinction
between ADAS-equipped vehicles and self-driving vehicles with ADS technology.36 People mistakenly use the two terms interchangeably; however, ADASequipped vehicles consist of advanced, automated safety equipment designed to
assist human drivers, and are not fully autonomous.37 Conversely, ADS refers
to automobiles that can operate without human intervention and perform the entire driving task on a sustained basis, regardless of the operational design

acceleration or braking but not both). Most modern cars are considered Level 0 because features such as cruise
control cannot alter a vehicle’s speed to react to events on roadways on a sustained basis. See Mathews, supra
note 28, at 299-300 (distinguishing from Level 1, which provides basic longitudinal or lateral assistance movement on sustained basis); see also Automated Vehicles for Safety, supra note 29 (noting Level 0 includes automatic emergency braking, forward collision warning, and lane departure warning). Level 1 cars are limited in
their operational design domain—the geographic areas and specific conditions in which the automated vehicle
can function—because detection and response to objects and events on the roadway are performed by the human
driver. See Mathews, supra note 28, at 299, 300 n.33 (explaining adaptive cruise control feature’s limited automated ability); see also Automated Vehicles for Safety, supra note 29 (noting Level 1 features include adaptive
cruise control and lane-keeping assistance).
32. See Mathews, supra note 28, at 300 (comparing similarity of operational design domain for Level 1 and
Level 2 vehicles); Automated Vehicles for Safety, supra note 29 (describing Level 2 vehicles’ ability to assist
with steering, acceleration, and braking).
33. See Mathews, supra note 28, at 300 (noting Level 2 vehicles require human engagement because they
lack complete object and event detection).
34. See Jacoby et al., supra note 2 (recognizing ADS vehicles’ current existence though not yet available
for public use); Kolodny, supra note 5 (criticizing Tesla’s vehicle advertisements, which not completely selfdriving due to autonomous ability limitations). Tesla’s autopilot is an example of a Level 2 vehicle because
although it can perform longitudinal and lateral control, it cannot perform complete object and event detection
and response. See Mathews, supra note 28, at 300 n.35 (maintaining driver’s responsibility to remain alert and
in control of Level 2 cars).
35. See Mathews, supra note 28, at 300 (noting current vehicles still require full engagement and undivided
human driver attention); Automated Vehicles for Safety, supra note 29 (predicting, in 2025, U.S. will reach “Fully
Automated Safety Features” era); see also Kevin M.K. Fodouop, Note, The Road to Optimal Safety: CrashAdaptive Regulation of Autonomous Vehicles at the National Highway Traffic Safety Administration, 98 N.Y.U.
L. REV. 1358, 1370, 1370 n.48 (2023) (recognizing AV industry far away from full self-driving vehicles in all
circumstances despite “robo-taxi” usage).
36. See Jacoby et al., supra note 2 (defining ADAS and ADS); supra note 4 (defining ADS).
37. See Jacoby et al., supra note 2 (discussing different elements within ADAS and ADS vehicles). Safety
features within ADAS-equipped vehicles include collision avoidance, pedestrian detection and avoidance, blind
spot detection, lane-keeping assistance, adaptive cruise control, traffic sign recognition, and parking assistance.
See id. (discussing various safety features).

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domain.38 When a driver activates the self-driving mode, the ADS software takes
control and makes driving decisions without human assistance.39
Although Levels 3, 4, and 5 vehicles are all classified as ADS automobiles
and perform the entire self-driving task, there are key distinctions between the
autonomous ability at each level.40 Level 3 vehicles operate autonomously for
much of the route, but the operation design domain remains limited.41 Thus, a
human needs to be available to take control of the driving task when there is an
ADS failure or when the car exceeds its operational capacity.42 Level 4 vehicles
have ADS perform the entire driving task but differ from Level 3 vehicles because the ADS, rather than the human driver, performs the dynamic driving task
fallback and must achieve a minimal risk condition without human intervention.43 Level 5 vehicles can drive in all conditions without any human interference, with human occupants considered mere passengers.44
2. Current Governance over Level 2 Classified Vehicles
The NHTSA issues the Federal Motor Vehicle Safety Standards (FMVSS),
which establish the minimum safety requirements for motor vehicles and their

38. See id. (discussing driving operation differences in ADS cars compared to ADAS-equipped vehicles).
The NHTSA adopted SAE’s definition of an ADS, which defines it as technology “capable of performing the
entire [dynamic driving task] on a sustained basis, regardless of whether it is limited to a specific operational
design domain.” Occupant Protection for Vehicles with Automated Driving Systems, 87 Fed. Reg. 18560, 18560
n.1 (Mar. 30, 2022) (to be codified at 49 C.F.R. pt. 571); see also Mathews, supra note 28, at 299 (defining
operation design domain).
39. See RUSTAD 4, supra note 4, § A (discussing ADS vehicles’ lack of normal vehicle parts like steering
wheels and brake pedals). It is essential for these types of vehicles to navigate in various, unpredictable environments because vehicle travel is less predictable than other forms of transportation. See id. (explaining AVs use
combined software applications to make decisions in unknown road conditions); Ben Dickson, The Predictions
Were Wrong: Self-Driving Cars Have a Long Way to Go, PCMAG (Feb. 11, 2019), https://www.pcmag.com/news/the-predictions-were-wrong-self-driving-cars-have-a-long-way-to-go [perma.cc/872J-VTMV] (distinguishing roads from railways because of congestion, road signs, pedestrians, animals, other drivers, and traffic).
40. See Mathews, supra note 28, at 300-01 (distinguishing between automation abilities among Levels 3,
4, and 5 vehicles); Automated Vehicles for Safety, supra note 29 (explaining importance of continued human
engagement even when system performs driving task).
41. See Mathews, supra note 28, at 300-01 (recognizing Level 3 ADS ability to drive in freeway traffic
jams); Automated Vehicles for Safety, supra note 29 (characterizing Level 3 automobiles “Conditional Driving
Automation”).
42. See Mathews, supra note 28, at 300, 300 n.38 (noting human required to resume vehicle control after
Level 3 system sends request for assistance).
43. See id. at 301 (describing full responsibility of system within limited-service areas and lack of human
engagement); Automated Vehicles for Safety, supra note 29 (characterizing Level 4 by “high automation”). The
dynamic driving task fallback is a mechanism to respond to a system failure and ensures a backup plan to maintain
safety. See Mathews, supra note 28, at 299 n.30, 301 (defining dynamic driving task fallback term and explaining
Level 4 vehicle’s responsibility for system failures).
44. See Mathews, supra note 28, at 301 (explaining vehicle maintains control in any condition where human
driver required to take over); Automated Vehicles for Safety, supra note 29 (identifying Level 5 by “full automation”); Collingwood, supra note 21, at 19 (using term “passengers” to describe humans in self-driving vehicles).

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equipment, including those for both ADAS-equipped and ADS vehicles.45 In
2021, the NHTSA issued its Second Amended General Standing Order (General
Order), listing two pathways for ADS vehicles to operate publicly and requiring
vehicle and equipment manufacturers of both Level 2 ADAS and Levels 3, 4,
and 5 ADS vehicles to report crashes to the agency.46 The General Order allows
the NHTSA to identify specific defects in Level 2 ADAS and all ADS vehicles.47
The NHTSA continues to use its broad range of regulatory tools to exercise authority over ADS vehicles, but Levels 4 and 5 ADS vehicles, in particular, pose
new challenges because current FMVSS rely on the principle that humans operate these cars.48
In March 2022, the NHTSA issued its first federal regulation over AVs, called
Occupant Protection for Vehicles with Automated Driving Systems (Occupant
Protection Rule).49 The Occupant Protection Rule mandates that AVs provide
45. See Mathews, supra note 28, at 301-03 (discussing NHTSA’s authority to amend or create FMVSS and
ability to grant exemptions to standards); Samuel D. Adkisson, Article, System-Level Standards: Driverless Cars
and the Future of Regulatory Design, 40 U. HAW. L. REV. 1, 31 (2018) (arguing proper AV FMVSS would
enhance consumers and prevent market race inadequately valuing safety). The NHTSA claims authority to regulate ADAS and ADS because the purpose of the Vehicle Safety Act is to prevent serious injuries before they
result from established defects in automobiles. See 49 U.S.C. § 30111 (granting Secretary of Transportation
authority over motor vehicle safety standards); United States v. Gen. Motors Corp., 565 F.2d 754, 755, 759 (D.C.
Cir. 1977) (affirming preventative purpose of Vehicle Safety Act). But see Hainley, supra note 14, at 217-18
(suggesting NHTSA has limited power to force states to enact its regulations).
46. See U.S. DEP’T OF TRANSP. NHTSA, SECOND AMENDED STANDING GENERAL ORDER 2021-01 1-3
(2021), https://www.nhtsa.gov/sites/nhtsa.gov/files/2023-04/Second-Amended-SGO-2021-01_2023-04-05_2.pdf [https://perma.cc/VU5Y-DKPL] [hereinafter GENERAL ORDER] (reaffirming agency’s broad authority to collect crash data, survey potential defects, and ensure compliance). The first pathway for ADS vehicles to operate
on public roadways requires manufacturers to fully comply with the FMVSS and to certify those vehicles as
compliant. See id. at 3 (outlining first pathway to meet compliance); 49 U.S.C. § 30122(b) (defining compliance);
49 U.S.C. § 30115(a) (requiring manufacturer or distributor to issue certificate of compliance when standards
met). The second pathway allows manufacturers to utilize statutory exceptions or exemptions to operate a noncompliant vehicle. See GENERAL ORDER, supra, at 3 (discussing alternative pathway); 49 U.S.C. § 30122(b)
(allowing noncompliant vehicle operation only for testing or similar purpose during maintenance or repair); see
also 49 U.S.C. § 30113(b)(3)(B)(ii) (stating exemption applicable for development of new motor vehicle safety
feature).
47. See GENERAL ORDER, supra note 46, at 1-2 (discussing NHTSA’s broad authority in General Order).
48. See NHTSA, UNDERSTANDING NHTSA’S REGULATORY TOOLS: INSTRUCTIONS, PRACTICAL
GUIDANCE, AND ASSISTANCE FOR ENTITIES SEEKING TO EMPLOY NHTSA’S REGULATORY TOOLS 2 (2017),
https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/understanding_nhtsas_current_regulatory_tools-tag.pdf
[https://perma.cc/NH4B-AVDP] [hereinafter NHTSA REGULATORY TOOLS] (listing tools like interpretations,
exemptions, notice-and-comment rulemaking and defects, and enforcement authority); Mathews, supra note 28,
at 302 (stating ADS vehicles lacking manual control could certify to comply with FMVSS). With technology
rapidly evolving, the NHTSA’s rulemaking authority is not ideal because it is time-consuming and alternatives
like exemptions are only temporary. See Mathews, supra note 28, at 303-04 (adding exemptions can only occur
in minimal amount); see also NHTSA REGULATORY TOOLS, supra, at 3 (stating exemptions provided for limited
exceptions in only certain circumstances).
49. See Occupant Protection for Vehicles with Automated Driving Systems, 87 Fed. Reg. 18560, 18560
(Mar. 30, 2022) (to be codified at 49 C.F.R. pt. 571) (issuing final regulatory rules for AVs); Atilla Kasap, States’
Approaches to Autonomous Vehicle Technology in Light of Federal Law, 19 OHIO ST. TECH. L.J. 315, 319 (2023)
(discussing NHTSA’s issuance of regulatory rules). The Department of Transportation (DOT) previously provided AV guidelines for states to voluntarily adopt. See Kasap, supra, at 320 (discussing four suggested policies).

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the same protection for occupants as traditional passenger vehicles.50 It interprets SAE’s Levels 3, 4, and 5 vehicles as those operating with ADS but distinguishes Levels 4 and 5 automobiles as “ADS-equipped vehicles” that operate
without traditional manual controls.51 In its federal register notice, the agency
clarifies that manufacturers of ADS-equipped vehicles with traditional, forwardfacing seating must continue to apply the Occupant Protection Rule, even if the
automobile does not have manual steering controls.52 The NHTSA reiterates that
the agency’s main priority is safety issues related to Level 2 vehicles because
these higher autonomy vehicles are still in the development stage.53
C. Traditional Judicial Interpretations of Vehicle-Related Liability
1. State Authority over Vehicle Regulation and Defective Product Claims
States generally have broad authority to create their own motor vehicle safety
standards, and plaintiffs can bring common law product liability claims against
manufacturers when vehicles are negligently created and result in injury.54 In
both Hendrick v. Maryland55 and Young v. Masci,56 the U.S. Supreme Court held
that states have the right to prescribe uniform regulations necessary for public
safety concerning the operation of vehicles upon their highways, absent national
legislation.57 Further, state courts have evaluated whether a manufacturer may
50. See 87 Fed. Reg. at 18560 (discussing new federal requirements); Kasap, supra note 49, at 319 (analyzing NHTSA’s 2022 final rules for AVs). Passenger vehicles are cars and trucks—including pickups, SUVs,
and vans—with a gross vehicle weight rating of 10,000 pounds or less. See U.S. DEP’T OF TRANSP. NHTSA,
NAT’L CTR. FOR STAT. AND ANALYSIS, OCCUPANT PROTECTION IN PASSENGER VEHICLES 1 (2023), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813449 [https://perma.cc/DCE4-P9PB] [hereinafter NAT’L CTR.]
(explaining occupant protection includes seatbelts, car seats for children under five, and frontal airbags).
51. See 87 Fed. Reg. at 18560 (adopting SAE’s ADS definition and distinguishing Levels 4 and 5 vehicles
from Level 3).
52. See id. at 18562 (reasoning further data required for nonconventional seating, like rear-facing seats or
campfire seats).
53. See id. at 18564 (recognizing limiting effects on final rule).
54. See 23 U.S.C. § 402(a)(1) (granting states responsibility for installing highway safety programs to reduce traffic accidents); Hendrick v. Maryland, 235 U.S. 610, 622 (1915) (upholding state motor vehicle law);
Young v. Masci, 289 U.S. 253, 259 (1933) (holding state vehicle statute valid). But see Bibb v. Navajo Freight
Lines, Inc., 359 U.S. 520, 530 (1959) (striking down state automobile law enforcing unreasonable regulations);
Geier v. Am. Honda Motor Co., 529 U.S. 861, 864-65 (2000) (holding product liability claim preempted for
conflicting with NHTSA safety objective).
55. 235 U.S. 610 (1915).
56. 289 U.S. 253 (1933).
57. See Hendrick, 235 U.S. at 623 (explaining state law did not contradict any federal statute because Congress did not enact any); Young, 289 U.S. at 259 (emphasizing states have right to protect their citizens). In
Hendrick, the State of Maryland charged John Hendrick with violating the state’s motor vehicle statute, leading
Hendrick to argue that the statute violated a U.S. citizen’s right to travel into and through the state. See Hendrick,
235 U.S. at 621. The Court explained that vehicles are inherently dangerous due to their increased use on highways and held that states have the right to protect their citizens. See id. at 622 (explaining absent uniform national
regulation, state has right to enact motor vehicle safety regulations). Similarly in Young, the Court upheld a state
law requiring the owner of a vehicle to assume liability when another person drives the owner’s car in pursuit of

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be found liable for its negligent creation of traditional cars.58 Under the Third
Restatement of Torts, a commercial seller or distributor may be liable when its
product is sold defectively, which could lead to injury.59 In MacPherson v. Buick
Motor Co.,60 the court ruled that an automobile manufacturer’s relationship to
the work and nature of its business imposed a stricter duty on it toward consumers.61 In this case, an automobile manufacturer purchased wheels for its automobiles from a wheel manufacturer and then sold the automobiles to retailers.62
Donald MacPherson filed suit against the manufacturer after buying a vehicle
from one of the retailers and sustaining injuries in an automobile accident caused
by a defective wheel.63 The New York court explained that, unlike the car dealer
that sold the vehicle, the manufacturer bought wheels for the purpose of assembling cars, thereby making the manufacturer responsible for inspecting the vehicle—including the wheels—for any defects.64 Because the manufacturer’s business involved designing cars, and it knew the vehicle was designed to travel fifty
miles per hour—requiring strong wheels to avoid potential injury—the manufacturer had a stricter duty to ensure the car’s sound, final production.65 Given the
nature of its business transactions, the manufacturer was aware of the danger of
defective wheels and the possibility that individuals other than the retailer would

the owner’s business venture and negligently causes death or property damage to a third party. See Young, 289
U.S. at 255-56, 260 (lacking good reason to not hold vehicle’s owner personally liable when driver’s negligence
causes injury). The Court explained that because tort liability depends upon where the injury takes place, an
owner makes himself legally liable based on the statute by giving a third party permission to drive a vehicle in
the state. See id. at 258 (discussing state power to impose liability for injury within its borders).
58. See Dawson v. Chrysler Corp., 630 F.2d 950, 956 (3d Cir. 1980) (explaining manufacturer needs to
consider possibility of injury); MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916) (holding
manufacturer liable because of nature of business); see also Mwafulirwa, supra note 7, at 402 (stating negligence
liability based on knowledge of foreseeable risk and failure to mitigate risk).
59. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 (AM. L. INST. 1998) (outlining various
factors different courts consider when assessing manufacturer’s liability).
60. 111 N.E. 1050 (N.Y. 1916).
61. See id. at 1055 (emphasizing reliance on car manufacturers imposes duty to ensure products not defective).
62. See id. at 1051 (noting manufacturer’s failure to inspect wheels before sale).
63. See id. (describing origins of suit). On appeal, the manufacturer argued it did not owe a duty to MacPherson because it did not sell the vehicle to MacPherson. See id. (identifying issue of whether manufacturer
owed duty of care to anyone other than immediate consumer).
64. See MacPherson, 111 N.E. at 1054 (distinguishing duty between car dealer and car manufacturer because manufacturer ultimately created car). The court explained that in order to impose this duty upon the manufacturer, it must be shown that the manufacturer knew the defect posed a danger and that there was more than a
mere possibility that other people may be injured because of the danger posed by that defect. See id. at 1053
(explaining duty standard). The manufacturer’s knowledge of the potential dangers of defective products could
be inferred by the nature of the business transactions, and its failure to inspect the vehicle. See id. (considering
proximity or remoteness of relation also relevant factor).
65. See id. at 1053-54 (noting foreseen injury to others not just mere possibility, “but as an almost inevitable
result”). If the construction is defective, the nature of automobiles gives warning of probable danger as well.
See id. at 1054-55 (holding object inherently dangerous when its negligent creation can endanger people).

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drive the automobile.66 The U.S. Court of Appeals for the Third Circuit, in Dawson v. Chrysler Corp.,67 also determined that an automobile manufacturer must
consider the likelihood of accidents occurring during the intended uses of vehicles—namely, during transportation.68 Moreover, the Third Circuit held that
manufacturers could reasonably foresee the risks that negligently made products
create, as consumers could be exposed to these risks while using the products as
intended, like when cars transport passengers.69
Nevertheless, there are limitations to state authority over motor vehicle regulation.70 States bear a heavy burden when they impose unrealistic safety regulations that affect interstate commerce.71 Also, the Vehicle Safety Act may
preempt state product liability claims against manufacturers for their negligent
creation of traditional vehicles.72 The FMVSS give manufacturers broad
66. See MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053-54 (N.Y. 1916) (establishing foreseeability).
The court ruled that the car manufacturer had a duty to inspect the vehicle because the car manufacturer purchased
the wheels and attached them to the car. See id. at 1055 (identifying car manufacturer’s role in final product
resulting in injury). Because the car manufacturer assembled the vehicle, it had a duty to inspect the vehicle
before putting it on the market. See id. (imposing stricter duty on manufacturer because of nature of business
and relationship to constructing automobiles).
67. 630 F.2d 950 (3d Cir. 1980).
68. See id. at 956 (discussing intended use of vehicles). In New Jersey, a defendant in a tort action is not
liable unless he owes a duty of care to the injured party. See id. (identifying New Jersey tort law). If such a duty
exists in a strict liability action, the jury must decide whether the product at issue was defective and whether the
defective product was the proximate cause of the injured party’s injury. See id. (explaining jury’s role in strict
liability cases). In Dawson, a manufacturer argued it owed no duty of care to the injured party—an automobile
passenger—because it had no obligation to manufacture the vehicle to protect the passenger against the type of
injury suffered. See id. at 955 (indicating lack of evidence to show defect proximate cause of injury).
69. See id. at 956 (stating manufacturers must consider accidents within “intended” uses of cars); see also
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) (AM. L. INST. 1998) (considering whether seller
should have known risks of foreseeable use).
70. See Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 529-30 (1959) (holding burden of state regulation
too great for its purpose).
71. See id. at 530 (concluding Illinois failed to show compelling interest to uphold strict safety regulation
affecting interstate commerce). In Bibb, an Illinois statute required the rear wheels of trucks and trailers to be
equipped with a specific safeguard. See id. at 521 (discussing Illinois’s mudguard requirements for wheels of
trucks and trailers driving within State). The appellees challenged the statute and argued that it violated the
Commerce Clause because it interrupted interstate commerce. See id. at 522 (discussing appellees’ argument).
See generally U.S. CONST. art. I, § 8, cl. 3 (granting Congress broad power “[t]o regulate [c]ommerce . . . among
the several States . . . ”); United States v. Lopez, 514 U.S. 549, 558-59 (1995) (determining interstate commerce
authority covers channels, instrumentalities, and activities with substantial relationship to commerce). The Court
explained that although there is great leeway in enacting statutes regarding safety regulations, the burdensome
nature of specific safety measures cannot outweigh the need for such regulations. See Bibb, 359 U.S. at 529-30
(asserting Illinois failed to show compelling rationale for regulatory requirements inconsistent with almost all
states).
72. See CHARLES J. NAGY, JR., AMERICAN LAW OF PRODUCTS LIABILITY § 97.15 (3d ed. 2023) (summarizing Vehicle Safety Act’s federal preemption); see also U.S. CONST. art. VI, cl. 2 (stating federal law preempts
any contrary state law). When Congress lawfully exercises its authority to pass motor vehicle laws, state motor
vehicle laws can be preempted and deemed invalid, regardless of whether the state statute is supplementing or
contradicting the federal laws. See Varela v. FCA US LLC, 505 P.3d 244, 251 (Ariz. 2022) (explaining types of
preemption include express or implied); see also Hainley, supra note 14, at 217-18 (explaining congressional

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discretion to install safety devices, and the Vehicle Safety Act may preempt state
torts claims from holding manufacturers liable for installing defective devices
when such claims significantly conflict with the Vehicle Safety Act.73 Nonetheless, state tort claims will not be preempted when they do not significantly conflict with a safety-related issue, or when the NHTSA does not expressly seek to
regulate the specific vehicle-related technology at issue.74 In addition, the
NHTSA has indicated that it has no intention to restrict regulations of AVs and
ADAS-equipped vehicles beyond their traditional regulation by the federal government.75
2. The Contributory Negligence of Passengers in Traditional Vehicle
Accidents
A passenger’s contributory negligence may be considered to assess their liability for vehicle accidents.76 In such cases, states have varying approaches to
authority to pass motor vehicle regulation and use NHTSA regulations for guidance). The Vehicle Safety Act
expressly allows common-law claims so long as they do not conflict with the Act or frustrate federal objectives.
See NAGY, JR., supra, § 97.15 (listing examples when state tort claims not preempted); see also RICHARD E.
KAYE, AMERICAN LAW OF PRODUCTS LIABILITY § 2.32 (3d ed. 2024) (highlighting Vehicle Safety Act saving
clause allowing common-law tort action).
73. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 886 (2000) (holding state common law “no airbag”
action conflicted with FMVSS 208); NAGY, JR., supra note 72, § 97.15 (explaining common-law claims
preempted when they conflict with federal law or frustrate federal objectives). The Vehicle Safety Act preempts
state claims regarding installation of air bags and automatic seatbelts because they impliedly conflict with the
Act. See NAGY, JR., supra note 72, § 97.15 (preempting claims creating actual conflict with clear language within
NHTSA regulations). In Geier, the Vehicle Safety Act preempted a tort action that sought to impose a legal duty
on a manufacturer to install airbags in a specific car model; had a legal duty been found, other manufacturers
creating similar cars would have to do the same, thereby disrupting the federal government’s objective of gradually phasing in passive restraints. See 529 U.S. at 881 (explaining other manufacturers would avoid including
passive restraints to comply with airbag duty). The NHTSA intended the federal standard to provide manufacturers with a large variety of options regarding different passive restraint systems; thus, the tort action conflicted
with this standard. See id. (explaining state law would cause series of hurdles for manufacturers of similar vehicles).
74. See Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323, 335 (2011) (holding no preemption because
manufacturers’ choice in seat belt installation cost-effective issue); Varela, 505 P.3d at 262 (allowing state strict
liability claim regarding automatic emergency braking technology); Dawson v. Chrysler Corp., 630 F.2d 950,
962 (3d Cir. 1980) (acknowledging states’ authority to set liability standards for car manufacturers and ensure
compliance). The Varela court did not preempt a state strict liability claim regarding the installation of automatic
emergency braking technology. See 505 P.3d at 262 (acknowledging NHTSA’s encouragement for states to
examine liability disputes in AV-related accidents). The circumstances differed from Geier because there was
no imposed safety standard before the court. See id. (concluding DOT did not provide authoritative statement
allowing manufacturers to choose to install technology). The NHTSA neither authorized nor required any particular automatic braking system or specific combination of such features. See id. (rationalizing suit did not
create any concerns of obstacles for federal objectives); see also Hainley, supra note 14, at 208-09 (highlighting
NHTSA publishes voluntary guidelines states can adopt, which help Congress with motor vehicle regulation).
75. See NAGY, JR., supra note 72, § 97.15 (noting NHTSA’s record did not intend to regulate AVs nor ADS
beyond its traditional authority).
76. See 1 NORMAN J. LANDAU & EDWARD C. MARTIN, PREMISES LIABILITY LAW AND PRACTICE § 13.01[1]
(perm. ed., rev. vol. 2025) (explaining contributory negligence by injured party’s failure to conform conduct

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determine a passenger’s contributory negligence.77 For instance, in Rhode Island, a passenger is generally not deemed contributorily negligent, even though
passengers have a general duty to ensure their own safety in vehicles.78 Nevertheless, the Rhode Island Supreme Court explained that a passenger’s contributory negligence may be considered if they are aware of dangers unknown to the
driver or fail to caution a reckless driver.79 In Baltimore & Ohio Railroad Co. v.
Patrick,80 the Indiana Court of Appeals explained that under Indiana common
law, the passenger of a vehicle owes an ordinary duty of care to avoid danger.81
The scope of that duty depends upon a reasonably prudent person in similar circumstances at the time of the accident.82 When a passenger fails to comply with
that duty, the driver’s negligence may be imputed to passengers when passengers
control or have the right to control the vehicle.83

reasonable prudent person would exercise); RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 17(a)
(AM. L. INST. 1998) (limiting plaintiff recovery for defective product claim by harm plaintiff’s conduct caused).
The issue of contributory negligence is ordinarily for the fact finder to resolve, rather than an issue of law to be
resolved by a court. See Balt. & Ohio R.R. Co. v. Patrick, 166 N.E.2d 654, 660 (Ind. App. 1960) (holding
conflicting facts for passenger’s negligence support jury decision). The contributory negligence of passengers
will be especially important when Levels 4 and 5 AVs are available to the public since human occupants are
considered passengers. See supra note 44 and accompanying text (stating occupants considered passengers in
fully self-driving cars).
77. Compare Hermann v. Rhode Island Co., 90 A. 813, 814 (R.I. 1914) (holding limited circumstances for
passenger contributory negligence), with Patrick, 166 N.E.2d at 660 (ruling fact finder must decide whether due
care existed for contributory negligence).
78. See Hermann, 90 A. at 814 (allowing contributory negligence also when passenger has control over car
or principal-agent relationship with driver).
79. See id. (asserting passenger’s inactions in certain situations yield highest degree of reasonable care). In
Tennessee, an appellate panel upheld a jury decision that denied recovery to the passenger in a negligent driving
accident because the passenger was aware the driver was intoxicated while driving and failed to intervene. See
Lanier v. Bane, No. M2000-03199-COA-R3-CV, 2004 Tenn. App. LEXIS 356, at *1-2, *9 (Tenn. Ct. App. June
8, 2004) (noting both passenger and driver drinking heavily before getting into car). The court determined that
the evidence established that a jury could reasonably determine that because the passenger was aware of the
driver’s intoxication before getting into the car, the passenger’s decision to ride with the intoxicated driver significantly contributed to the injury. See id. at *1, *19 (identifying sufficient material evidence included blood
alcohol tests and witness testimony to prove fact).
80. 166 N.E.2d 654 (Ind. App. 1960).
81. See id. at 660 (explaining appropriate standard). The court awarded damages to an injured passenger
after the driver negligently collided with a train. See id. at 657 (summarizing case and jury’s verdict). After the
court denied the driver’s motion for a new trial, she appealed on a theory of contributory negligence, arguing that
the injured party’s failure to look—which would have allowed him to see the train coming—was a proximate
cause of the accident. See id. at 657-59 (noting varying testimonies about whether passenger saw train).
82. See id. at 660 (explaining, absent joint venture, passenger owes only ordinary duty of care).
83. See id. at 661 (allowing imputation of negligence to passenger when they have opportunity to control
car). The driver argued the passenger was a joint venturer in the operation of the vehicle as a matter of law. See
id. at 660 (discussing driver argument). The court disagreed, stating the facts were not so clear as to whether the
injured party had joint control over the operation or engaged in a joint venture because of conflicting evidence
presented at trial. See id. at 660-61 (highlighting conflicting testimonies). With such conflicting testimony, the
issues of negligence, proximate cause, and contributory negligence went to the jury. See id. at 661 (reiterating
contributory negligence only matter of law when single inference made from undisputed facts).

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D. Legislation Related to AVs
1. Nationally Proposed Regulation
The division among state laws regarding self-driving vehicles is one factor
influencing uniform AV regulation.84 For example, although most state motor
vehicle statutes do not explicitly require a human driver, much of that regulation
is designed for automobiles that nonetheless require human drivers, creating an
uncertain legal landscape for AVs.85 Many states interpret driver liability based
on three categories: “drivers,” “operators,” or individuals who are in “actual
physical control” of the automobile.86 The issue with these descriptors arises for
84. See Dawson v. Chrysler Corp., 630 F.2d 950, 963 (3d Cir. 1980) (calling upon Congress to enact legislation addressing manufacturer liability in automobile defect cases); Trayce Hockstad & Justin Fisher, Automated
Unity: Evaluating the Uniform Law Commission’s Autonomous Vehicle Act, 61 WASHBURN L.J. 275, 285 (2022)
(identifying lack of uniformity and varying state regulation for vehicles); Johnathon P. Ehsani et al., State Laws
for Autonomous Vehicle Safety, Equity, and Insurance, 50 J.L. MED. & ETHICS 569, 571 (2022) (analyzing different state criteria for AV safety). Some jurisdictions define AVs based on SAE’s levels of interpretation, while
others provide their own interpretations. Compare CAL. VEH. CODE § 38750(a)(1)-(2) (Deering 2024) (defining
AV by cars containing autonomous technology meeting SAE Levels 3, 4, or 5 definitions), CONN. GEN. STAT. §
13a-260(a)(1) (2025) (interpreting full AVs pursuant to SAE Levels 4 or 5), and NEV. REV. STAT. ANN. §
482A.030 (LexisNexis 2025) (establishing AV means ADS capable of functioning at SAE Levels 3, 4, or 5), with
ARIZ. REV. STAT. § 28-101(8) (LexisNexis 2025) (stating AV means one equipped with ADS), TENN. CODE ANN.
§ 55-8-202(b)(1) (2025) (explaining autonomous technology means vehicle driving on high or full automation
mode without human supervision), and N.D. CENT. CODE § 8-12-01(1) (2025) (stating AV means automobile
equipped with ADS). Some jurisdictions only permit the operation of ADS on public roadways for testing purposes. See D.C. CODE § 50-2352.01 (2025) (limiting AV use for testing only); WASH. REV. CODE ANN. §
46.92.010 (LexisNexis 2024) (restricting AV use to testing only). But see N.D. CENT. CODE § 8-12-02(1) (2025)
(allowing AV use for transportation of people or goods); CAL. VEH. CODE § 38750(b) (Deering 2024) (permitting
AV operation on public roads if mandates met). See generally Autonomous Vehicle Laws, IIHS (2024), https://www.iihs.org/topics/advanced-driver-assistance/autonomous-vehicle-laws [https://perma.cc/9Y97-6BZX] (listing
different state AV legal frameworks in February 2024).
85. See Hockstad & Fisher, supra note 84, at 284-85 (noting unknown legal landscape concern for AVs
with current state motor vehicle laws). Some states do not require that an operator be physically present in the
AV, while other states do have that requirement. See Autonomous Vehicle Laws, supra note 84 (noting some
states do not require physical presence for Levels 4 or 5 cars). Compare ARIZ. REV. STAT. § 28-9702(C) (LexisNexis 2025) (allowing AV operation on public road without human pursuant to certain requirements), and FLA.
STAT. ANN. § 316.85(2) (LexisNexis 2025) (permitting AV operation without human operator physically present
in vehicle), with CAL. VEH. CODE § 38750(b)(2) (Deering 2024) (requiring driver in driver’s seat and ready to
take control if technology fails). Only four jurisdictions have enacted legislation requiring the AV to alert the
human operator during an emergency or ADS failure, and to either transfer control to the human or achieve a
minimal risk condition. See Ehsani et al., supra note 84, at 571 (highlighting legislation requiring “human driver
override” in California, District of Columbia, Florida, and Pennsylvania); see also CAL. VEH. CODE §
38750(c)(1)(C) (Deering 2024) (requiring operator to take control and ensuring system can stop if driver cannot
take control); D.C. CODE § 50-2352.01(c)(5)(D) (2025) (mandating operator’s physical presence in vehicle or
achievement of “minimal risk condition” if system fails). In contrast, other states either mandate that the human
operator regain control after an ADS failure, or simply require that the AV achieve a minimal risk condition
without human intervention. See Ehsani et al., supra note 84, at 571 (noting six states require human control,
five ensure minimal risk condition, and sixteen require neither).
86. See Hockstad & Fisher, supra note 84, at 284 (introducing three ways state codes typically categorize
term “driver”). Most state laws do not require physical proximity as a prerequisite in determining who is in
control of the vehicle for liability purposes, meaning legal entities, like corporations, can be held liable. See id.

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Levels 4 and 5 vehicles, where self-driving technology completely removes the
human occupant from direct control of the driving operation.87
As an alternative to Congress stepping in, a group of lawyers and judges in
the Uniform Law Commission (ULC) drafted model legislation for state legislatures to adopt and ensure nationwide uniformity.88 The Proposed Uniform Act
coined the term “automated driving provider,” which is a person required to declare themselves to the state and act as the legal driver when the ADS assumes
control.89 One requirement to qualify as an automated driving provider is that
the person significantly participated in the development of the ADS because the
ULC assumes companies deploying the cars will drive the AVs rather than a
human driver.90 The Proposed Uniform Act is expected to clarify current state
regulations, rather than replace existing state vehicle laws, to limit ambiguities
when determining whether a vehicle qualifies as an AV.91 The Act further stipulates that an automated driving provider should reasonably comply with the
traffic laws and would not automatically violate the law simply by creating a
vehicle capable of doing so; however, if the AV violates a traffic law while in its
automated operation mode, the automated driving provider would be responsible.92 The Proposed Uniform Act does not provide information regarding levels

(emphasizing owners and operators of vehicles not always individuals). Compare FLA. STAT. ANN. § 316.85(2)
(LexisNexis 2025) (allowing AV operation without human physical presence), with ARIZ. REV. STAT. § 289702(B)-(C) (LexisNexis 2025) (clarifying circumstances when human operator’s physical presence required).
87. See supra notes 38-39 and accompanying text (explaining humans will not have control of driving operation when vehicle fully autonomous).
88. See Hockstad & Fisher, supra note 84, at 276 (introducing ULC’s role in creating Proposed Uniform
Act). The ULC examines and evaluates aspects of state law to determine which areas would benefit from uniformity. See About Us, UNIF. L. COMM’N, https://www.uniformlaws.org/aboutulc/overview [https://perma.cc/G9M5-RV6L] (discussing attributes of ULC’s drafting and recommendations to acts). The Proposed Uniform
Act’s governance includes the development of AVs on publicly used roads, and the Act’s objective is to codify
the proposed legislation into current state vehicle codes with regard to AVs. See UNIF. AUTOMATED OPERATION
OF VEHICLES ACT §§ 1, 3 (UNIF. L. COMM’N 2019) (explaining sections should supplement, modify, and clarify
current state law for AVs).
89. See UNIF. AUTOMATED OPERATION OF VEHICLES ACT §§ 2(2), 6(b) (UNIF. L. COMM’N 2019) (explaining term “automated-driving provider” and responsibility).
90. See id. § 6(a)-(b) (including additional requirements like fulfilling NHTSA required submissions and
providing acknowledgment state agency affirmed status); Hockstad & Fisher, supra note 84, at 289 (expressing
rationale for Section 6 of Proposed Uniform Act).
91. See Hockstad & Fisher, supra note 84, at 286, 287 n.85 (discussing purpose of clear definition).
92. See UNIF. AUTOMATED OPERATION OF VEHICLES ACT § 9(b)-(c) (UNIF. L. COMM’N 2019) (explaining
standard for automated vehicle road compliance not absolute but rather reasonableness); see also id. § 9(d) (requiring additional AV operation standards: properly maintained, registration compliance, lawful insurance, and
fit to operate). The goal of Section 9 is for state road laws to be interpreted to promote the development of AVs
and improve traffic safety, meaning the automated driving provider would not necessarily violate state laws by
simply creating a vehicle capable of briefly exceeding the speed limit. See id. § 9(a) (discussing Section 9’s
purpose); Hockstad & Fisher, supra note 84, at 292 (distinguishing interpretations of reasonableness). Nevertheless, the automated driving provider would be responsible for a speeding ticket received while the car is in
automated driving mode. See Hockstad & Fisher, supra note 84, at 292 (explaining responsibility of automated
driving provider when vehicle operating autonomously).

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of enforcement and anticipates that governance will depend on circumstances,
with authority vested in federal, state, and local agencies.93
Congressional attempts to pass federal regulations for AVs have generally
been unsuccessful.94 In 2017, the House of Representatives tried to pass legislation to speed up the adoption of self-driving cars and bar states from setting their
own performance standards, but no legislation passed the Senate.95 Four years
later, the House of Representatives introduced the SELF DRIVE Act.96 Proponents of the SELF DRIVE Act intended for it to mandate states to adopt identical
federal standards when enforcing laws related to the “design, construction, or
performance” of ADS vehicles, and to require the DOT to inform potential ADS
buyers about the capabilities and limitations of such cars.97
Although the SELF DRIVE Act did not make it through Congress in 2021,
the Act’s existence is still very much relevant to current discussions regarding
potential AV federal regulation.98 In July 2023, the House Subcommittee on
Innovation, Data, and Commerce conducted a legislative hearing assessing the
amended SELF DRIVE Act, along with a draft to amend Title 49 of the U.S.
Code to require new motor vehicle standards for partial and full AVs.99 The
hearing highlighted the need to gather additional data and to clarify federal, state,

93. See Hockstad & Fisher, supra note 84, at 292 (discussing limitations of Proposed Uniform Act).
94. See David Shepardson, US to Decide on GM Request to Deploy Self-Driving Cars, REUTERS (July 12,

2023), https://www.reuters.com/business/autos-transportation/us-decide-whether-ok-gm-self-driving-car-deployment-plan-2023-07-12/ [https://perma.cc/7X56-EQQ9] (highlighting Congress’s debate over national legislation covering self-driving cars).
95. See id. (highlighting House’s continual efforts to pass self-driving vehicle legislation); Ismail Amin,
Autonomous Vehicles: Legal Considerations of the New Human Driving Experience, 26 NEV. LAW. 12, 13 (2018)
(noting attempts to enact consistent laws and regulations for AV research, testing, and distribution).
96. See SELF DRIVE Act, H.R. 3711, 117th Cong. (2021) (providing additional DOT responsibilities like
requiring “safety assessment certifications” for AV deployment). The SELF DRIVE Act would grant the
NHTSA authority over highly automated vehicles, create safety measures for them, provide information to potential buyers about testing and evaluation, establish a council to address arising issues, and specifically preempt
state law from regulating AVs. See Amin, supra note 95, at 13 (listing legal provisions of SELF DRIVE Act).
97. See H.R. 3711 (preempting AV state laws for design, construction, and performance unless identical to
federal requirements).
98. See Christopher H. Grigorian et al., Congress Takes Steps to Revive Legislation Regulating Autonomous
Vehicles, FOLEY & LARDNER LLP (Aug. 2, 2023), https://www.foley.com/insights/publications/2023/08/congress-legislation-autonomous-vehicles/ [https://perma.cc/CZ7N-9NDB] (overviewing recent congressional hearing discussing federal involvement with AV regulation).
99. See id. (describing hearing first step to revive AV federal regulation); Memorandum from Comm. Majority Staff to Members, Subcomm. on Innovation, Data, and Com. 3-4 (July 24, 2023), https://d1dth6e84htgma.cloudfront.net/IDC_Memo_Self_Driving_Vehicles_AV_Hearing_2023_07_26_be020b0868.pdf [https://perma.cc/Q2C9-WK2Z] (discussing potential preemptive national standard regarding creation and performance of selfdriving vehicles); see also 49 U.S.C. § 30101 (explaining national standards for vehicle equipment, research, and
development necessary to reduce traffic accidents). See generally Act of July 5, 1994, Pub. L. No. 103-272, §
1(a), 108 Stat. 745, 745 (providing certain federal transportation laws revised, codified, and enacted through Title
49).

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and local authority.100 The hearing illustrated Congress’s efforts to begin taking
steps toward federal regulation of AV technology.101
2. A Foreign Government Policy: England’s Automated Vehicles Act
The United Kingdom (U.K.) recently issued its Automated Vehicles Act 2024
(U.K.’s AV Act) to regulate self-driving cars operating on public roads and support the development of such technology.102 The U.K.’s AV Act defines AVs
and introduces the legal implications surrounding “transition demands.”103 To
be considered an AV under the Act, a car must satisfy a self-driving test, which
requires cars to be equipped with the technology to travel autonomously and selfdrive safely and legally.104 A vehicle travels autonomously when controlled by
its automated technology such that a person cannot immediately intervene with
the driving task.105 With respect to transition demands, the Act provides that
when the vehicle is transitioning from self-driving mode, it must communicate a
signal to the user-in-charge to take control of the driving task before the transition period ends.106 The user-in-charge must have reasonable time to prepare
and resume control of the vehicle when the transition demand is initiated and
before the end of the transition period.107 Prior to the end of the transition period,
the vehicle will continue to travel autonomously and the technology will communicate to the user-in-charge when the transition period ends.108 The user-incharge is immune from driving-related offenses before the transition period concludes.109 Immunity for the user-in-charge also exists if an offense results from
the vehicle’s failure to safely manage the human driver’s own failure to assume

100. See Grigorian et al., supra note 98 (describing two significant outcomes of hearing). Several participants suggested that the federal government should have exclusive responsibility for the regulation of AV accessibility, including safety, design, and manufacturing nationwide; meanwhile, states would retain responsibilities
such as titling, registration, rules of the road, and deployment of ADAS technologies and AVs. See id. (debating
distinct roles of federal and state governance over AV usage and liability).
101. See id. (explaining Congress’s recent initial steps in reviving 2017 SELF DRIVE Act).
102. See Automated Vehicles Act 2024, c. 10, § 1(8) (Eng.) (granting Secretary of State authority over AV
safety principals); see also Lucy McCormick, Let’s AV It, 173 NEW L.J. 10, 10 (2023) (analyzing King’s Speech
in 2023 regarding future plans for AV regulation prior to enactment).
103. See Automated Vehicles Act 2024 §§ 1(2)-(7) (detailing basic concepts of regulatory scheme for authorization to use AVs); McCormick, supra note 102, at 10 (discussing U.K.’s goals for Act).
104. See Automated Vehicles Act 2024 § 1(2) (satisfying self-driving test by autonomous operation in safe
and legal manner).
105. See id. § 1(5) (defining autonomous travel pursuant to Act).
106. See id. § 7(2) (defining transition demand and transition period). A person is the “user-in-charge” when
the vehicle has an activated user-in-charge feature and the person is in a position to exercise control over the
vehicle but is not controlling it. See id. § 46 (outlining user-in-charge elements). For purposes of the Act, the
user-in-charge is considered the driver of the car. See id. § 49(1) (clarifying status of user-in-charge driver).
107. See id. § 7(3)(b) (establishing time requirements for transition period).
108. See Automated Vehicles Act 2024, c. 10, §§ 7(3)(c)-(d) (Eng.) (discussing vehicle communication requirements during transition period).
109. See id. §§ 47-48(1) (distinguishing when immunity applies for user-in-charge).

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control during the transition period, regardless of whether the user-in-charge actually takes control or not.110
The U.K.’s AV Act states that criminal charges may be necessary if a human
fails to act competently and carefully when using the user-in-charge feature.111
Nominated individuals and senior managers of self-driving companies may also
be liable for offenses under the Act.112 Further, entities that fail regulatory requirements or fail to comply with certain notices may also face civil liability
sanctions.113 The Act focuses on the safety and compliance standards of AVs
but does not address scenarios where defective products lead to civil liability
disputes.114
E. The Rise in Accidents Involving AVs
In February 2022, General Motors’s Cruise (Cruise), a leading company in
advancing self-driving technology, filed a petition with the NHTSA seeking exemptions from multiple FMVSS to deploy vehicles with self-driving technology
that lack any human intervention nationwide.115 While the petition awaited the
NHTSA’s approval, California state law already authorized Cruise to deploy its

110. See id. § 48(2) (noting exception for immunity not applicable when breach of vehicle authorization
requirement occurs). Surprisingly, the provision allows for complete immunity for a human occupant who has
negligently failed to resume control to receive complete immunity due to shortcomings in how the vehicle subsequently handles the situation. See McCormick, supra note 102, at 10 (anticipating proposed reforms for future
self-driving car civil liability disputes).
111. See Automated Vehicles Act 2024 § 54 (establishing criminal sanctions when user-in-charge fails to act
reasonably); see also id. §§ 24(1)-(8) (imposing criminal liability for false or misleading conveyance of AV
information). The Act amends the Road Traffic Act of 1988, adding offenses for automobiles without human
control. See id. § 53 (amending prior act to include “road vehicles used without human control”). See generally
Road Traffic Act 1988, c. 52, § 35 (Eng.) (enforcing traffic regulations in U.K.).
112. See Automated Vehicles Act 2024 §§ 26-27 (outlining situations where nominated individuals and senior managers possibly liable); see also id. § 15 (explaining role of nominated individual to provide Secretary of
State information regarding self-driving entity); id. § 27 (defining relevant senior manager by person with significant role in decision making in business organization).
113. See id. §§ 34-37 (penalizing entities for failing to comply with information, interview, compliance, or
redress notices).
114. See McCormick, supra note 102, at 10 (anticipating future reforms in product liability laws following
new technology).
115. See David Shepardson, Union Urges US Regulators to Deny GM’s Self-Driving Cruise a Safety Exemption, REUTERS (Sept. 27, 2023), https://www.reuters.com/business/autos-transportation/teamsters-union-asksnhtsa-deny-gms-bid-exempt-cruise-safety-standards-2023-09-27/ [https://perma.cc/YC66-Q6WZ] (listing vehicles lacked steering wheels, mirrors, turn signals, and windshield wipers); see also General Motors—Receipt of
Petition for Temporary Exemption from Various Requirements of the Federal Motor Vehicle Safety Standards
for an Automated Driving System-Equipped Vehicle, 87 Fed. Reg. 43595, 43595-96 (July 21, 2022) (detailing
aspects and reasons Cruise wanted exemption). See generally Services: Driverless by Design, CRUISE (2024),
https://w-ww.getcruise.com/our-services/ [https://perma.cc/P7H4-V6DB] (discussing Cruise’s leadership in selfdriving technology advancements and services); Press Release, Gen. Motors, GM Announces Additional Investment in Cruise (Mar. 18, 2022), https://news.gm.com/newsroom.detail.html/Pages/news/us/en/2022/mar/0318cruise.ht-ml [https://perma.cc/R5H9-3AD9] (announcing General Motors’s purchase and investment in Cruise
technology due to Cruise’s advanced self-driving developments).

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AV technology on California roadways.116 About a year and a half after Cruise
filed its petition with the NHTSA, a traditional vehicle driving in California hit
a pedestrian into the path of a Cruise self-driving vehicle that ran her over and
inflicted severe injuries.117 The California Department of Motor Vehicles asserted that Cruise misrepresented the safety of its technology to the agency, causing the company to suspend all self-driving vehicle operations around the country while initiating an investigation into the accident.118 The uncertainty in
Cruise’s ability to operate its self-driving technology without risk of causing injury has resulted in a lack of trust among the public.119
Cruise is not the only AV company involved in vehicle accidents resulting
from technological failures.120 In December 2023, a court ordered Kevin Aziz
Riad to pay over $23,000 in restitution damages after finding him criminally responsible for killing two people in an accident that resulted from his overreliance
on Tesla’s autopilot feature.121 The NHTSA investigated various accidents, including Riad’s, which led to the recall of nearly two million Tesla automobiles.122 The two-year federal investigation focused on accidents involving
116. See Press Release, State of Cal. Dep’t of Motor Vehicles, DMV Statement on Cruise LLC Suspension
(Oct. 24, 2023), https://www.dmv.ca.gov/portal/news-and-media/dmv-statement-on-cruise-llc-suspension/ [https://perma.cc/82YB-T594] (suspending Cruise’s deployment and driverless testing permits in October 2023);
CAL. CODE REGS. tit. 13, § 227.38 (2025) (providing requirements for manufacturer’s permits to test AVs not
requiring human drivers).
117. See Tripp Mickle et al., G.M.’s Cruise Moved Fast in the Driverless Race. It Got Ugly., N.Y. TIMES
(Nov. 3, 2023), https://www.nytimes.com/2023/11/03/technology/cruise-general-motors-self-driving-cars.html
[https://perma.cc/Y79B-WLVC] (detailing Cruise’s self-driving vehicle accident). The self-driving car trapped
the pedestrian underneath it and dragged her. See id. (noting Cruise’s vehicle dragged pedestrian twenty feet
after collision).
118. See DMV Statement on Cruise LLC Suspension, supra note 116 (announcing Cruise’s self-driving vehicle suspension for its unreasonable public safety risk). Cruise misrepresented its technology by failing to send
a video of the initial incident to the Department of Motor Vehicles, which showed the self-driving car dragging
the woman. See Mickle et al., supra note 117 (discussing Cruise’s technology defect accident and misrepresentation). Several Cruise employees fear there is no simple fix for the company’s problems, while others, such as
the company’s business partners, worry such issues are likely to cause stricter AV rules. See id. (asserting company insiders’ position to hold industry culture accountable for prioritizing technological advancement over
safety).
119. See Mickle et al., supra note 117 (quoting Cruise’s chief executive Kyle Vogt’s statement Cruise needs
to start rebuilding trust).
120. See Steve Stecklow, Two US Senators Call for Tesla Recalls After Reuters Investigation, REUTERS
(Dec. 28, 2023), https://www.reuters.com/business/autos-transportation/two-us-senators-call-tesla-recalls-afterreuters-investigation-2023-12-27/ [https://perma.cc/8348-9F5W] (providing senators’ rationale for recall).
121. See Stefanie Dazio, A Tesla Driver to Pay $23k in Restitution for a 2019 Los Angeles Crash That Killed
2 People, ASSOCIATED PRESS (Dec. 15, 2023), https://apnews.com/article/tesla-autopilot-los-angeles-d65c48236d4c9d4a420b6f8307669832 [https://perma.cc/ETB4-9TRR] (identifying first time U.S. prosecutor brought felony charges against driver utilizing ADAS system); see also supra note 8 and accompanying text (outlining facts
of case).
122. See Dazio, supra note 121 (anticipating recall will update software and fix defects to ensure driver
attentive while using autopilot); see also Keith Barry, Tesla Recalls Over 2 Million Cars Due to Autopilot Concerns, CONSUMER REPS. (Dec. 19, 2023), https://www.consumerreports.org/cars/car-recalls-defects/tesla-recallscars-due-to-autopilot-concerns-a6186663858/ [https://perma.cc/7HWA-GT7B] (stating specific vehicles recall-

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ADAS-equipped vehicles using autopilot.123 Shortly after the initial recall, two
U.S. senators urged Tesla’s CEO to recall any vehicles containing parts that pose
a safety hazard, and to correct all deceptive information the company originally
presented to the NHTSA.124 Their demands stemmed from the publication of a
Reuters report that highlighted the company’s practice of attributing product failure to driver misuse and abuse, despite having information suggesting otherwise.125 The report revealed that although the company’s engineers monitored
recurrent failures for an extended period of time, Tesla instructed its service managers to deflect responsibility by asserting that Tesla’s parts were not defective
and its customers were at fault.126 More recently, in June 2024, a Tesla vehicle
crashed into a police car while under the self-driving feature.127 The driver admitted to using his cellphone while the Tesla was engaged in self-driving
mode.128

ed include Model S, Model X, Model Y, and Model 3). The software updates include a five-strike penalty that
will disable autopilot for drivers who repeatedly disregard warnings to apply steering or remain attentive to the
road. See Barry, supra (noting recall specifically pertains to autopilot’s lane-centering assistance).
123. See Dazio, supra note 121 (discussing NHTSA investigation came after previous recall).
124. See Stecklow, supra note 120 (summarizing suggested recall). Senators from Connecticut and Massachusetts expressed concern over Tesla’s knowledge of the safety flaws and its failure to notify NHTSA of their
causes. See id. (quoting Senators “disturbed that [Tesla] would blame [its] customers for these failures”). One
accident report showed that the wheels of a 2020 Tesla Model 3 fell off the vehicle traveling sixty miles per hour
while the autopilot feature was engaged. See Hyunjoo Jin et al., Tesla Blamed Drivers for Failures of Parts It
Long Knew Were Defective, REUTERS (Dec. 20, 2023), https://www.reuters.com/investigates/special-report/teslamusk-steering-suspension/ [https://perma.cc/M6BE-AQ5F] (investigating alleged Tesla part flaws and failures).
125. See Jin et al., supra note 124 (explaining findings of report); Stecklow, supra note 120 (highlighting
report findings). The report came from thousands of Tesla’s internal documents dated 2016-2022 and indicated
Tesla denied several suspension and steering problems, alleging the customers caused the failures while records
showed Tesla’s excessive knowledge of the systematic suspension and steering problems. See Jin et al., supra
note 124 (comparing similarities of current accidents to series of suspension failure accidents in China in 2016).
In July of 2023, an investigation by Reuters revealed that Tesla secretly suppressed thousands of customer complaints about poor driving range, sparking a federal investigation. See id. (discussing investigation results). At
the commencement of NHTSA’s investigation, it relied on just twelve complaints from drivers, but records
showed Tesla had more than thirty times the number of complaints since 2017 involving the company’s Model
3 and Model Y vehicles. See id.
126. See Stecklow, supra note 120 (expressing both senators’ frustration with Tesla’s inaccurate argument).
But see Tesla (@Tesla), X, (Dec. 27, 2023, 2:47 PM), https://twitter.com/tesla/status/1740097070789198241
[https://perma.cc/X9DH-YTZK] (disputing points in Reuters’s data and declaring report confuses non-safety issue with safety issue).
127. See Summer Lin, Tesla Driver Using Self-Driving Mode Slammed into Police Cruiser in Orange
County, L.A. TIMES (June 13, 2024), https://www.latimes.com/california/story/2024-06-13/self-driving-teslanarrowly-misses-police-officer-before-slamming-into-patrol-car-in-orange-county [perma.cc/JL6S-SYM8] (detailing Tesla 2024 vehicle accident).
128. See id. (noting driver cooperated with investigation); see also Distracted Driving, U.S. Dep’t of Transp.
NHTSA, https://www.nhtsa.gov/risky-driving/distracted-driving [https://perma.cc/KC35-8TV5] (proffering texting while driving most alarming driving distraction); U.S. DEP’T OF TRANSP. NHTSA, DOT HS 813559,
DISTRACTED DRIVING IN 2022 2 (2024), https://rosap.ntl.bts.gov/view/dot/78043 [https://perma.cc/GFK3-8HQ8]
(reporting 368 fatal car accidents in 2022 from texting while driving).

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III. ANALYSIS
A. Why Worry About Regulating Fully Self-Driving Vehicles Now?
Vehicles categorized by SAE’s autonomous Levels 3, 4, or 5 are not yet available on the public market, but proactive legislation is essential to providing guidance for their anticipated arrival.129 Tesla’s recent recalls, the investigative Reuters report, and the increase in accidents involving AV technology all underscore
the imperative for federal intervention to protect the safety of future motor vehicle travel amidst the adoption of this innovative technology.130 Kevin Aziz
Riad’s case represented the first time a U.S. prosecutor brought criminal charges
against a driver utilizing an ADAS system, leaving many questions about which
circumstances would lead to civil liability for manufacturers or human drivers
when accidents involve Level 2 vehicles.131 The pathway for litigation remains
even more unclear for automobiles categorized at higher levels that take human
control out of the equation.132
1. The Problems with Inconsistent State Laws over AVs
Inconsistent state AV laws demonstrate the necessity for uniform federal
standards in approaching future liability disputes involving Levels 3, 4, and 5
AV accidents.133 Although the SAE automation standards are recognized nationally, states are not required to adopt them and can decide their own standards.134
129. See Mathews, supra note 28, at 299-300 (expressing human driver’s full attention required for current
vehicles available to public); Fodouop, supra note 35, at 1370 n.48 (recognizing cars truly capable of self-driving
in all road situations long way away); Automated Vehicles for Safety, supra note 29 (anticipating era of “Fully
Automated Safety Features” beginning in 2025); 1 RUSTAD, supra note 4, § 1.02[10][k] (highlighting car companies’ and affiliates’ anticipation for sale of self-driving cars in 2025).
130. See supra Section II.E (explaining recalls, Reuters report, and accidents).
131. See Dazio, supra note 121 (discussing Kevin Aziz Riad plead no contest to vehicular manslaughter with
gross negligence); see also supra notes 8-11 and accompanying text (considering potential approaches for future
litigation).
132. See supra notes 11-13 and accompanying text (discussing liability theories when humans not in control
of vehicle); supra text accompanying notes 41-44 (decreasing human’s responsibility to assume control of car
when autonomous levels increase).
133. See supra note 84 and accompanying text (identifying various state vehicle regulations); Hockstad &
Fisher, supra note 84, at 277 (describing different state approaches for AV regulation); Kubica, supra note 14, at
i69 (addressing concern for lack of state law uniformity and legal uncertainty); Kasap, supra note 49, at 321
(addressing DOT’s inability to require uniform state laws but suggests consistency across all states). For instance,
Mississippi and West Virginia have no statutes that explicitly regulate AVs, while Arizona governs the operation
of all AVs. See Hockstad & Fisher, supra note 84, at 278 (illustrating varying state AV legislation).
134. See Hainley, supra note 14, at 212 (establishing AVs blur line between “drivers” and “vehicles,” making
NHTSA’s regulation difficult); Hockstad & Fisher, supra note 84, at 279 (noting adopting SAE categorization
voluntary and subject to state discretion); Kasap, supra note 49, at 321 (explaining DOT’s authority limited and
cannot require states to conform); see also Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 529-30 (1959)
(holding state laws cannot place unrealistic regulations on commerce); Fodouop, supra note 35, at 1376 (addressing NHTSA’s intention to preserve state oversight in post-crash liability). Absent national legislation, states have
the right to enforce their own public safety laws regarding the operation of vehicles on their highways to protect

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This creates little consensus as to what amounts to an AV under existing state
laws and creates legal complexities for drivers traveling through different jurisdictions.135 For individuals who own these vehicles and cross state lines, it is
crucial to recognize that they might encounter a completely different set of regulations governing their AV, of which they may be unaware.136 State laws vary
when determining who the “driver” is for liability purposes, and it remains unclear whether the technology in Levels 4 or 5 AVs can fit clearly into the current
three driver descriptors.137 Moreover, state laws differ on whether an operator
needs to be physically present in the AV: Only four states have legislation requiring the AV technology to alert a human when the technology fails, and some
states require a human to regain control in the event of technology failure while
others do not.138 With such variation among state laws, it is evident that mere
state adoption of some uniform AV laws is not enough and that federal intervention is necessary.139
2. Suggested Federal AV Legislative and Regulatory Solutions
Like most state laws, the FMVSS do not expressly require a human to control
the vehicle.140 Statements made by the NHTSA also indicate a “driver” does not
necessarily need to be a human controller; however, Levels 4 and 5 vehicles may

their residents. See Hendrick v. Maryland, 235 U.S. 610, 623 (1915) (reasoning increased use of highways makes
vehicles inherently dangerous); Hainley, supra note 14, at 217-18 (suggesting congressional enactment over AV
regulation incorporating NHTSA’s guidelines).
135. See supra note 84 (comparing different AV definitions and permitted public road use); Mwafulirwa,
supra note 7, at 365 (noting differing state laws over AV regulation); Hockstad & Fisher, supra note 84, at 27980 (concluding existing state laws create different legal implications while traveling across United States); Kasap,
supra note 49, at 322 (expressing inconsistent AV state regulations across those already with laws).
136. See Hockstad & Fisher, supra note 84, at 279-80 (discussing different state vehicle laws); Kasap, supra
note 49, at 322 (addressing DOT’s concern over inconsistent state laws causing confusion). For example, the
AV laws in Colorado only regulate Levels 4 and 5 AV technology and do not necessarily apply to Level 3 drivers
traveling through the State, even though the vehicle might be regulated if it entered a different state. See Hockstad
& Fisher, supra note 84, at 279 (comparing different AV regulations in various states).
137. See Mwafulirwa, supra note 7, at 365 (recognizing no current state law addresses liability analysis when
vehicle driving itself); supra note 86 and accompanying text (identifying driver descriptors and showing liability
requirements different among states).
138. See Hockstad & Fisher, supra note 84, at 284 (summarizing lack of consensus among existing state law
regarding operations of AVs); supra note 85 (providing various state statutes regarding human responsibility
while traveling in AVs). For instance, Florida allows an AV to operate without a human physically present in
the car, while California mandates that a driver is in the driver seat and ready to takeover in the event of technology failure. Compare FLA. STAT. ANN. § 316.85(2) (LexisNexis 2025), with CAL. VEH. CODE § 38750(b)(2)
(Deering 2024).
139. See Dawson v. Chrysler Corp., 630 F.2d 950, 963 (3d Cir. 1980) (asking for congressional action to
address car manufacturer liability in traditional automobile defect cases); Hockstad & Fisher, supra note 84, at
275 (emphasizing importance of legislation for fully self-driving cars); Hainley, supra note 14, at 218 (suggesting
national legislation based upon NHTSA guidelines for AVs).
140. See Hainley, supra note 14, at 208 (stating FMVSS insufficient in AV regulation because written with
human drivers in mind); Hockstad & Fisher, supra note 84, at 282 (discussing FMVSS).

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fail to comply with other required FMVSS.141 Congressional enactment of legislation that includes different aspects of the Proposed Uniform Act, the SELF
DRIVE Act, and the U.K.’s AV Act would provide clarification for AV definitions and future AV-related liability.142 The Proposed Uniform Act clearly defines what qualifies as an AV and who is responsible for its operation, limiting
ambiguity among varying state definitions.143 The Act proffers that an automated driving provider—one that significantly participated in the AV’s creation
and acts on behalf of the manufacturing entity—remains responsible for the AV
when it operates autonomously without human intervention.144 The Act also imposes liability upon automated driving providers for state road law violations
during the automated vehicle operation, but it fails to consider liability implications when the AV technology fails and requires a human operator to take control.145
The SELF DRIVE Act would require manufacturers to disclose defects and
limitations in AVs, which would ensure drivers are reasonably aware of the vehicle’s potential faults or restrictions.146 Additionally, the Act would grant the
NHTSA express authority over all AVs.147 Similarly, the U.K.’s AV Act requires AV-manufacturing entities to comply with regulatory requirements and,

141. See Hockstad & Fisher, supra note 84, at 282-83 (“Communications from the NHTSA have suggested
that the agency does not consider the term ‘driver’ to mean a human controller.”). The NHTSA answered a
request from Google and interpreted that ADS could be considered a “driver” with respect to the FMVSS. See
id. at 282 (discussing NHTSA’s viewpoint ADS could mean driver with respect to FMVSS). Nonetheless,
NHTSA indicated Google may fail to meet other compliance requirements. See id. at 282-83 (noting agency’s
suggestion for Google to seek exemption for self-driving vehicle testing).
142. See UNIF. AUTOMATED OPERATION OF VEHICLES ACT §§ 2(3), 2(5) (UNIF. L. COMM’N 2019) (limiting
state law ambiguity by giving clear AV-related definitions); SELF DRIVE Act, H.R. 3711, 117th Cong. (2021)
(preempting state laws regarding design, construction, or performance of highly AVs); Automated Vehicles Act
2024, c. 10, §§ 24(1)-(8) (Eng.) (issuing AV safety principals and liability implications in U.K.); see also Hainley,
supra note 14, at 217-18 (recognizing NHTSA’s regulations not binding on states, thus congressional enactment
aligning with NHTSA necessary); Fodouop, supra note 35, at 1376 (acknowledging lack of safety standards by
NHTSA regarding manufacturer liability in AV crashes). Congress would likely be able to enact such regulation
under the Commerce Clause since driving is inherently interstate. See United States v. Lopez, 514 U.S. 549, 558
(1995) (upholding congressional authority to regulate “use of channels of interstate commerce”); Hainley, supra
note 14, at 217 (establishing authority through use of channels because AVs will certainty drive throughout states
on highways).
143. See UNIF. AUTOMATED OPERATION OF VEHICLES ACT §§ 2(3)-(5) (UNIF. L. COMM’N 2019) (defining
“automated driving” to limit confusion in determining whether vehicle fits AV definition).
144. See id. § 9(c) (defining when automated driving provider maintains responsibility); supra notes 89-91
and accompanying text (coining term “automated driving” to limit confusion in what amounts to AV).
145. See UNIF. AUTOMATED OPERATION OF VEHICLES ACT § 9(c) (UNIF. L. COMM’N 2019) (highlighting
automated driving provider liability for state road law violations).
146. See H.R. 3711 (establishing DOT authority over AVs); supra note 96 and accompanying text (discussing DOT’s authority in regulating manufacturers’ defective product disclosures); see also Jin et al., supra note
124 (identifying report showing Tesla’s excessive knowledge of technological failures); supra note 125 and accompanying text (addressing Tesla’s misrepresentation of product defect information to consumers).
147. See H.R. 3711 (proposing uniform AV federal standards for design, construction, and performance);
supra notes 99-100 (expressing rationales for NHTSA’s AV regulatory authority in Act); Amin, supra note 95,
at 13 (highlighting SELF DRIVE Act’s goals in enhancing NHTSA’s authority over AV regulation).

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under the Secretary of State’s discretion, provide an AV safety notice.148 Also,
the U.K.’s AV Act addresses the different liability standards for situations where
the self-driving technology fails and a human must assume control.149 Specifically, adopting a similar concept to the transition demand period will help clarify
liability for accidents that occur while driving control shifts from the technology
to the human.150 Human occupants will remain immune from liability while the
vehicle is driving autonomously, but such immunity will cease after the selfdriving mode fails and properly notifies the human occupant before the transition
period terminates.151 Thus, the human occupant will become liable for any accidents after the transition period ends, so long as the vehicle properly meets its
safety and driver notice requirements.152
At a minimum, combining these provisions of the Proposed Uniform Act, the
SELF DRIVE Act, and the U.K.’s AV Act would clarify the ambiguities regarding AVs’ anticipated arrival to the public market and guide future AV litigation.153 These three legislative models offer the most defined guidance for future
litigation by standardizing AV definitions across states, proposing a legal duty
on manufacturers to ensure drivers are reasonably aware of the technology’s limitations, and providing clarity on liability when AV technology fails and human
intervention becomes necessary.154

148. See Automated Vehicles Act 2024, c. 10, §§ 34-37 (Eng.) (outlining civil sanctions against regulated
bodies); supra note 113 and accompanying text (discussing U.K.’s AV Act guidelines for AV manufacturing
companies).
149. See Automated Vehicles Act 2024 §§ 7(2)-(3), 47-48(1) (defining transition demands and imposing
liability based on when transition demand period concludes); supra text accompanying notes 106-109 (explaining
transition demands, transition demand periods, and shifts in liability based on such).
150. See Automated Vehicles Act 2024 §§ 7(2)-(3) (explaining liability situation when human resumes control); Ehsani et al., supra note 84, at 572 (noting some states already require AVs to alert driver when autonomous
technology fails); see also Mwafulirwa, supra note 7, at 402 (discussing operator liability depends on knowledge
of foreseeable risk and exercise of due care).
151. See Automated Vehicles Act 2024 §§ 47-48(1) (specifying situations when immunity applicable); supra
text accompanying note 109 (stating immunity for human driver exists before end of transition period).
152. See Automated Vehicles Act 2024 § 48(2) (allowing human occupant immunity when vehicle fails to
comply with authorization requirement); supra text accompanying note 110 (recognizing immunity when manufacturer fails to comply with regulatory requirements).
153. See Dawson v. Chrysler Corp., 630 F.2d 950, 963 (3d Cir. 1980) (acknowledging need for federal guidance to address differing state standards in traditional automobile defect cases). See generally UNIF. AUTOMATED
OPERATION OF VEHICLES ACT §§ 1-10 (UNIF. L. COMM’N 2019); SELF DRIVE Act, H.R. 3711, 117th Cong.
(2021); Automated Vehicles Act 2024 §§ 7(2)-(3), 47-48(1)-(2).
154. See UNIF. AUTOMATED OPERATION OF VEHICLES ACT § 2 (UNIF. L. COMM’N 2019) (providing clear
definitions but no liability considerations when technology fails); H.R. 3711 §§ 3(b)(1), 8(b) (proposing manufacturers inform consumers of AV risks and granting NHTSA with AV regulation authority); Automated Vehicles Act 2024, c. 10, §§ 47-48(1) (Eng.) (placing liability upon individuals after transition demand period notifies
about AV technology failure); see also Fodouop, supra note 35, at 1376 (noting NHSTA’s failure to address
safety standard to apply to AV manufacturers in crashes).

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B. Future AV Civil Liability Claims: Defective Product Claim Coupled with
Contributory Negligence
Proposals for national uniformity in the United States, enacted AV legislation
abroad, and recent recalls of self-driving technology all illustrate a shift in holding the manufacturers of self-driving vehicles accountable for violating traffic
laws and threatening public safety.155 Accordingly, defective software is a significant factor to consider for future AV accident claims, and the decisions in
traditional vehicle product liability claims reveal some guidance for future litigation that seeks to hold manufacturers accountable.156 The NHTSA 2022 issuance of the Occupant Protection Rule foreshadows that the agency will issue new
FMVSS specifically for Levels 4 and 5 AV manufacturers when self-driving cars
are available for public use.157 Similar to the traditional and ADAS-equipped
vehicle FMVSS, the Levels 4 and 5 FMVSS will create minimum safety requirements for AV manufacturers to implement in their cars and provide different
options for the safety-related features.158 Because the NHTSA has not provided
safety guideline standards for AV manufacturers’ responsibility to prevent
crashes caused by technological failures, there is minimal concern that state defective-product lawsuits will be preempted.159 These claims focus on the manufacturer’s duty of care rather than conflicting with any specific federal safety

155. See UNIF. AUTOMATED OPERATION OF VEHICLES ACT §§ 6(b), 9(b)-(c) (UNIF. L. COMM’N 2019) (asserting when automated driving provider considered legal driver and responsible for traffic laws); supra text
accompanying note 91 (using automated driving provider to anticipate AVs driven by companies deploying
them); H.R. 3711 § 4(a) (granting DOT authority to enact standards companies must comply with when deploying
AVs); Automated Vehicles Act 2024 §§ 26-27, 34-37 (holding entities, potentially through their agents, accountable for violations); DMV Statement on Cruise LLC Suspension, supra note 116 (requiring self-driving vehicle
company to implement changes to enhance safety).
156. See Dawson, 630 F.2d at 963 (finding no basis in overturning judgment against vehicle manufacturer);
MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916) (establishing vehicle manufacturer not merely
dealer and responsible for finished product); Kubica, supra note 14, at i60 (noting liability theories include manufacturing defects, design defects, and failure to warn); RUSTAD 1, supra note 4, § 1.02[10] (urging change in
liability rules for self-driving vehicles because defective technology increases for causal factor).
157. See Occupant Protection for Vehicles with Automated Driving Systems, 87 Fed. Reg. 18560, 18564
(Mar. 30, 2022) (to be codified at 49 C.F.R. pt. 571) (noting agency’s focus on Level 2 safety-related issues
because higher levels not available to public). Current occupant protection does not include autonomous technology standards, but rather pertains to seat belts, car seats for children under five years old, and frontal air bags
in passenger vehicles. See NAT’L CTR., supra note 50, at 1 (explaining what occupant protection encompasses).
158. See GENERAL ORDER, supra note 46, at 5-6 (requiring ADS manufacturers only to report safety-related
accidents, giving NHTSA necessary information for future action); supra text accompanying note 45 (explaining
FMVSS issues minimal safety requirements).
159. See Fodouop, supra note 35, at 1376 (identifying NHTSA’s silence on AV safety standards); GENERAL
ORDER, supra note 46, at 5-6 (requiring Level 2 and ADS manufacturers and operators to report only specific
crash-related information); NAGY, JR., supra note 72, § 97.15 (emphasizing Vehicle Safety Act generally allows
common-law action); Varela v. FCA US LLC, 505 P.3d 244, 262 (Ariz. 2022) (concluding lack of federal objective to regulate safety standards does not preempt tort action). But see SELF DRIVE Act, H.R. 3711, 117th
Cong. (2021) (preempting state AV or ADS laws for design, construction, or performances unless identical to
federal).

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regulation.160 Future plaintiffs involved in Levels 4 and 5 vehicular accidents
should also feel confident bringing product liability suits and keeping manufacturers accountable for their defective products because occupants of these vehicles are considered mere passengers rather than drivers, meaning a less stringent
standard of care will be applied to them.161
1. AV Manufacturer Liability: A Roadmap to an AV Defective Product Claim
The NHTSA has suggested that ADS technology may be considered the
driver, which would impose liability on AV manufacturers in future accidents.162
Given that occupants in Levels 4 or 5 vehicles are largely removed from direct
control of the driving and operation, attributing fault to the human would be neither equitable nor rational.163 The AV manufacturers, however, would assume a
degree of responsibility, and an occupant or injured third party could bring a
defective product claim against AV manufacturers when a defect in the autonomous technology causes an accident.164 The plaintiff would need to prove the
following elements: (1) the defect made the car unreasonably dangerous; (2) the
defect was present when the car was sold to the owner; (3) the AV manufacturer
sold or created the AV; (4) the defect directly caused the injury; (5) the AV was
being used in a reasonable, foreseeable manner at the time of the accident, and
no safety feature was overridden.165
a. Proving the First Three Elements
The relationship between AV manufacturers and their artificial intelligence
technology can help prove the first three elements.166 The MacPherson court
160. Compare Varela, 505 P.3d at 262 (explaining lack of federally imposed safety standard does not
preempt tort action), with Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000) (determining state action
interfered with federal purpose because manufacturers given choice to install safety feature).
161. See Balt. & Ohio R.R. Co. v. Patrick, 166 N.E.2d 654, 660 (Ind. App. 1960) (explaining passenger owes
ordinary duty of care to avoid danger); supra note 44 and accompanying text (identifying human’s limited role
in Level 5 cars’ driving task); 87 Fed. Reg. at 18560 n.1 (explaining ADS systems in full control of vehicle
operation); see also Amin, supra note 95, at 15 (stating NHTSA believes AVs would terminate human error).
162. See Hockstad & Fisher, supra note 84, at 282 (suggesting communications with NHTSA indicate
agency does not consider “driver” to mean human controller); RUSTAD 1, supra note 4, § 1.02[10] (noting foreseeable injury with defective software in AVs and product liability claims against manufacturers); see also
RUSTAD 4, supra note 4, § D (explaining autonomous product liability could include any party in chain of distribution of AVs).
163. See supra notes 38-39 and accompanying text (establishing humans will not have control of driving
operation when vehicle fully autonomous).
164. See RUSTAD 4, supra note 4, § A (discussing defective product liability claim in AV context).
165. See id. (listing elements of claim). In a strict liability claim, if the AV technology is proven defective,
the plaintiff does not need to prove the manufacturer’s negligence because the manufacturer is the “adequate risk
bearer” for self-driving cars. See id. § D (citation omitted) (noting fewer elements to prove in strict liability
claim); see also RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 1 cmt. e (AM. L. INST. 1998) (asserting
potential for holding nonmanufacturing sellers accountable in strict tort liability claims based on jurisdiction).
166. See MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053-54 (N.Y. 1916) (explaining creator warned
of consequences when negligent creation of object would reasonably cause death).

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emphasized that knowledge of the product’s danger—beyond mere possibility—
is essential for defective product liability claims involving vehicle accidents.167
Given the prevalence of software defects in traditional cars, manufacturers are
aware that integrating autonomous technology increases the risk of such defects.168 Companies like Cruise and Tesla have shown awareness of their technology’s defects through recent accidents and reports, which existed at the time
of sale.169 Tesla’s recall and lack of transparency with the NHTSA regarding its
ADAS technology highlight inherent dangers in their current technology and
raise serious concerns for future AVs where humans have no control. 170 Furthermore, the failure to implement reasonable, alternative designs that could have
mitigated injuries supports the claim that the AV was unreasonably dangerous.171
b. Establishing Causation
To establish the fourth element—that the defect directly caused the injury—
it is important to note that vehicles with defects are inherently dangerous, posing
a risk of harm and making injuries foreseeable when accidents occur.172 Tesla’s
knowledge of current autonomous technology defects creates a stricter duty to
consumers due to the design flaws in their products.173 Despite internal documentation confirming Tesla’s awareness of its vehicles’ systematic problems and
the company being in the best position to warn its consumers of these defects,
Tesla blamed its customers for the vehicle accidents.174 The information gathered by Tesla’s engineers showing recurrent technological failures, along with
similar incidents involving Cruise, demonstrate a pattern of negligence and a
167. See id. at 1053 (holding possibility of danger not enough to hold manufacturer liable—must have actual
knowledge).
168. See RUSTAD 1, supra note 4, § 1.02[10] (contending knowledge of current software defect establishes
awareness for future AV defects).
169. See Mickle et al., supra note 117 (demonstrating Cruise’s knowledge of autonomous technology failure
to identify pedestrian and emergency vehicles); Jin et al., supra note 124 (highlighting Tesla’s misrepresentation
of harms autonomous technology caused); Lin, supra note 127 (discussing Tesla’s autonomous technology hitting police vehicle).
170. See supra notes 124-126 and accompanying text (outlining concerns related to Tesla’s alleged misrepresentation involving AV data).
171. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) (AM. L. INST. 1998) (explaining
seller or distributor’s failure to use reasonable, existing alternative design can establish liability); RUSTAD 4,
supra note 4, § D (placing burden on plaintiff to demonstrate reasonable safe alternative and applying “risk/utility
test”); Mwafulirwa, supra note 7, at 378-79 (emphasizing failure to mitigate foreseeable risk of harm to others
possible basis for negligence liability).
172. See MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916) (stating vehicles inherently
dangerous when constructed improperly); see also Hendrick v. Maryland, 235 U.S. 610, 624 (1915) (noting states
have right to protect citizens because increased highway use makes vehicles inherently dangerous).
173. See MacPherson, 111 N.E. at 1053 (establishing stricter duty on manufacturer when they possess more
knowledge of danger); Jin et al., supra note 124 (identifying thousands of Tesla’s internal documents acknowledging systematic suspension and steering problems).
174. See MacPherson, 111 N.E. at 1053-54 (stating manufacturer rather than realtor in best position to inspect for defects); Jin et al., supra note 124 (discussing Tesla blaming consumers when reports indicated its
technology problems).

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clear link between their technology and resultant injuries, strengthening the
claim of causation.175
c. Proving Reasonable, Foreseeable Use
The fifth element requires that the self-driving car was being utilized in a reasonable, foreseeable manner at the time of the accident.176 Occupants of Level
5 vehicles are treated as passengers, placing them within the foreseeable group
that could sustain injuries from defective products.177 Car manufacturers must
consider the likelihood of accidents occurring from the intended use of their
products.178 Recent accidents involving Cruise and Tesla technology indicate
that these companies recognize the dangers associated with their new technology.179 For example, Cruise’s self-driving technology has led to accidents involving pedestrians and first-responder vehicles, highlighting the need for a duty
of care given the unpredictable behavior of human drivers.180 These incidents
suggest the company’s awareness of foreseeable injuries.181 The transition from
traditional cars to Levels 4 and 5 vehicles will not be immediate, as demonstrated
by a recent pedestrian accident involving both Cruise’s self-driving vehicle and
a traditional car.182 Such incidents illustrate that manufacturers must account for
the risks of their products in real-world scenarios.183 Companies like Cruise owe
a duty of care because they are aware that both types of vehicles will be utilized
in similar conditions and must account for the unpredictability of human driver

175. See Dawson v. Chrysler Corp., 630 F.2d 950, 956 (3d Cir. 1980) (explaining relevant duty of care
considerations related to defective vehicle claims); MacPherson, 111 N.E. at 1053 (imposing duty on manufacturers when nature of transaction establishes duty); Mwafulirwa, supra note 7, at 402-03 (critiquing use of res
ipsa loquitur theory for self-driving cars); supra note 118 (establishing Cruise’s knowledge of technological
defects); supra note 125 (detailing Reuters report showing Tesla’s awareness).
176. See RUSTAD 4, supra note 4, § A (explaining defective product liability elements).
177. See MacPherson, 111 N.E. at 1054 (explaining injury foreseeable and duty created because manufacturer failed to inspect vehicle); Occupant Protection for Vehicles with Automated Driving Systems, 87 Fed. Reg.
18560, 18560 (Mar. 30, 2022) (to be codified at 49 C.F.R. pt. 571) (explaining Levels 3, 4, and 5 vehicles capable
of driving without human control); Mathews, supra note 28, at 301 (implying occupants constitute passengers in
Level 5 vehicles).
178. See Dawson, 630 F.2d at 956 (explaining liability established when distributor sells product not reasonably fit or safe for intended purposes). But see Mwafulirwa, supra note 7, at 402 (asserting Tesla adequately
warns consumers because autopilot functionally equivalent to cruise control).
179. See supra Section II.E (focusing on rise of recent AV-related accidents); MacPherson v. Buick Motor
Co., 111 N.E. 1050, 1053 (N.Y. 1916) (explaining foreseeable injury and nature of manufacturer’s businesscreated duty).
180. See Mickle et al., supra note 117 (discussing Cruise technology involvement in pedestrian and firstresponder accidents).
181. See Dawson v. Chrysler Corp., 630 F.2d 950, 955 (3d Cir. 1980) (listing factors establishing duty of
company, including economic considerations, administration of law, justice, and environment).
182. See Mickle et al., supra note 117 (explaining both traditional and self-driving vehicles caused injury).
183. See supra notes 26-27 and accompanying text (highlighting disadvantages and concerns related to AV
operations).

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behavior.184 Thus, it is clear that AV manufacturing companies have established
their awareness of the potential risks associated with defects in Levels 4 and 5
vehicles and the injuries such defects can inflict.185 Manufacturers’ awareness
establishes a viable path for defective product liability claims in future AV litigation, which will prove particularly necessary as the technology continues to
evolve.186
2. The AV Passenger’s Contributory Negligence
Vehicle accidents could significantly decrease with the development of fully
self-driving automobiles because most vehicle accidents result from human error.187 This presumes that AV technology will be in complete control, while
human behavior—including consumption of drugs or alcohol and other related
distractions—will still exist.188 Yet, placing responsibility solely on manufacturers for malfunctions to Levels 3, 4, and 5 AVs in such circumstances is not
entirely just when human intervention may prevent the accident.189 The occupant
may have a duty to take control of the vehicle in the event of ADS failure based
on state law.190 Occupants in Levels 3, 4, and 5 AVs should owe an ordinary
duty of care to avoid danger, similar to what a passenger owes in a traditional

184. See Mickle et al., supra note 117 (noting both traditional and self-driving vehicles caused injury). An
AV manufacturer needs to consider that its vehicles will be used on roadways alongside traditional cars; additionally, manufacturers must also consider that because 90% of vehicle accidents are attributed to human error,
it is reasonably foreseeable that traditional cars will continue to cause such error. See Kubica, supra note 14, at
i39-i40 (crediting most vehicle accidents to human behavior and driver error); see also MacPherson, 111 N.E. at
1054 (noting manufacturer owed duty of care because of business in car-making).
185. See Mickle et al., supra note 117 (addressing Cruise’s own employees’ concerns about technology); Jin
et al., supra note 124 (highlighting report revealing Tesla’s awareness of technological failures).
186. See RUSTAD 4, supra note 4, § A (determining relevance of self-driving car utilized in reasonable, foreseeable manner at time of accident).
1

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</reference>

<statements>
1. Comparative negligence, strict product liability, and consumer protection law together govern how fault is allocated between drivers and ADAS providers.
2. Under strict liability, plaintiffs typically must show that a defect made the product unreasonably dangerous, that the defect existed when sold, that the manufacturer created or sold the product, that the defect directly caused the injury, and that the product was used in a reasonably foreseeable manner without overriding safety features.
3. Criminal prosecutions in several jurisdictions have reaffirmed that human drivers remain responsible in accidents involving ADAS features, particularly at Level 2. In California, a judge sentenced a driver to probation after he pled no contest to vehicular manslaughter with gross negligence for causing a fatal accident while using Tesla’s Autopilot, which ran a red light. In Arizona, the safety driver in an Uber self-driving test vehicle received probation for a pedestrian fatality where the system failed to recognize a jaywalker, again treating the human as the criminally responsible party.
4. Scholars propose that humans may remain immune from liability while the vehicle is driving autonomously, with liability kicking back in after a properly notified transition period ends, assuming the vehicle met its duty to alert occupants and avoided safety-feature overrides.
5. Courts and regulators emphasize that activating assisted driving does not relieve drivers of their duty to monitor the road and system behavior. Chinese rulings and guidance describe drivers as the actual executors of the driving task after activating assistance and treat evasion of driver-monitoring mechanisms as aggravating misconduct. Criminal cases in the United States similarly hold drivers accountable for grossly negligent use of ADAS when it leads to fatalities.
6. Other analyses similarly suggest that liability should be keyed to whether the vehicle properly notified occupants of failures or ODD exits and whether drivers had a fair opportunity to re-take control. If a vehicle fails to issue clear alerts or does so too late for reasonably attentive drivers to respond, responsibility may remain with manufacturers even after disengagement. Conversely, if drivers ignore clear and timely takeover requests, liability may shift back toward them.
7. Clear rules that, once a reasonable transition period elapses and the human fails to respond to proper alerts, negligence presumptively shifts toward the human driver, subject to rebuttal if alerts are shown to be inadequate.
</statements>

Begin the assessment now. Output only the JSON list, without any conversational text or explanations.