As we discussed in our January 8 post, federal, state, and local agencies are struggling with the lack of uniform standards governing the development and testing of autonomous vehicles. A recent report prepared for Uber Advanced Technologies Group by RAND Corporation, Measuring Automated Vehicle Safety: Forging a Framework, attempted to create a framework measuring safety in Autonomous Vehicles (AV).

The report’s authors considered how to define safety for AVs, how to measure their safety, and how to communicate what is learned or understood about them. The framework proposed in the Report for AV safety has three components:

  1. Settings: contexts that give rise to safety measures, such as computer-based simulation, closed courses, public roads with a safety driver present or remotely available, and public roads without a safety driver.
  2. Stages: the life stages of AV models during which these measures can be generated. This typically involves a development stage, where the product is created and refined, and a deployment stage, where the product is released to the public.
  3. Measures: the meaning of new and traditional measures obtained in each setting as AVs move through each stage. One category of measurement consists of the standards, processes, procedures, and design requirements involved in creating the AV system hardware, software, and vehicle components. The other two categories are “leading” and “lagging” measures: leading measures reflect performance, activity, and prevention; lagging measures are observations of safety outcomes or harm.

However, a challenge to implementing this framework is the availability of statistically significant data. Currently, AVs are operating in small numbers and in limited situations. Further, a large amount of data related to AVs either is not publicly available or publicly accessible.

The report notes that certain categories of data, such as how an AV system perceives and interacts with the external environment, are unlikely to be shared between companies due to the highly proprietary nature of the data. Other categories, such as the external environmental encountered by the vehicle, could be shared via a database containing the environmental circumstances, infrastructure, and traffic, but that the data would need to be anonymized. The data could then be used in AV development and improvement. Existing traffic safety databases could also be updated to include more detailed data on AVs, and the anonymization and eventual analysis of such data will become more feasible as AVs become more common.

As described in the Eckert Seamans Autonomous Vehicle Legislative Survey, federal legislation (the SELF Drive Act in the House and the AV START Act in the Senate) was not enacted during 2018. The U.S. Department of Transportation issued Federal AV guidance in October 2018. The remaining legal regulations are determined at the state level. Uniform standards and increased information-sharing could lead to more reliability in measuring AV safety and greater predictability in the realm of product liability.

The report offers the following recommendations:

  • During AV development, regulators, and the public should focus their concerns on the public’s safety as opposed to the speed or progress of development.
  • Competitors should report on progress at key demonstration points and, to the extent possible, adopt common protocols to facilitate fair comparisons.
  • Safety events that occur in the absence of statistically significant data should be treated as case studies and used as opportunities for learning by industry professionals, policymakers, and the public.
  • Efforts should be made to develop a common approach specifying where, when, and under what circumstances an AV can operate. This would improve communication between consumers and regulators, and would make it easier to track and compare AVs through different phases of development.
  • Research should be done on how to measure and provide information on AV system safety when the system is frequently being updated. AV safety measures must balance reflecting the current system’s safety level with prior safety records.

As the RAND report notes, AV consortia have started to emerge, including the Self-Driving Coalition for Safer Streets, which was established by Ford, Lyft, Uber, Volvo Cars, and Waymo, and the Partnership for Transportation Innovation and Opportunity, whose members include Daimler, FedEx, Ford, Lyft, Toyota, Uber, and Waymo. These consortia are facilitating broad participation in standard-setting, and may eventually build momentum toward a larger degree of information-sharing about practices, tools, and even data. (See previous post: Automotive manufacturers, technology companies among those teaming up to PAVE the way for autonomous vehicle)

Studies and reports seem to be coming to a single conclusion: cooperation between policy makers, manufacturers, technology companies, and the public is a must. In the past, being first to market was a leading factor in progress. With AV technology, cooperation and sharing of information between interested parties, including the general public, seems to be the way to further the use of AV technology. This is still an area where there are many more questions than answers. Today, as demonstrated by the groups being formed, there is a willingness to work together in order to harvest the many potential benefits of AV technology for the good of all.

Yesterday, at CES 2019 in Las Vegas, it was announced that top auto makers have united to form Partners for Automated Vehicle Education (PAVE).  PAVE’s mission is to educate “policymakers and the public about automated vehicles and the increased safety, mobility and sustainability they can bring.” Current members include Toyota, General Motors, WAYMO, Audi, National Safety Council, and SAE International.

As autonomous vehicles are becoming more prevalent on U.S. roads, questions and fears in the minds of policy makers and consumers seem to be on the rise. Members of the public are physically attacking WAYMO vehicles, slicing tires and breaking windows.  Congress refused to pass the self-driving car bill last year. PAVE hopes to help answers those questions and create a level of trust with everyone who will be affected by the technology.

PAVE will work with legislators regarding driver-assistance technology and hold educational workshops on the technologies. It will present hands on demonstrations for the public to be able to experience driverless technology. Further, PAVE will work with car dealers and service centers, offering “educational materials” that can be disseminated to customers.

It will be interesting to follow PAVE’s future to see if a more direct approach with legislators, businesses, and consumers regarding this new technology will ease the tension. Subscribe to the Artificial Intelligence Law Blog to keep abreast of PAVE’s activities.

Advancing autonomous vehicles to widespread use requires significant testing, and if that testing is performed in real world conditions, safety of third parties must be an ongoing and evolving paramount concern. The March 2018 crash of an Uber Advanced Technologies Group (UATG) autonomous vehicle in Arizona resulted in the death of a pedestrian.  Local and federal findings included that the sole human back-up driver was inattentive immediately prior to the accident and that vehicle’s emergency braking systems (including Volvo’s own system) were not enabled at the time of the accident.  As a result of the crash, UATG suspended all testing to self-examine and improve safety.  It released a report based in part upon a review of the crash investigation to the National Highway Transportation Safety Administration (NHTSA) in November 2018. The report addresses operational, technical, and organizational changes to be imposed to improve the safety of UATG autonomous vehicles.

Based on these improvements, Uber submitted a Notice of Testing Highly Automated Vehicles Application to the Pennsylvania Department of Transportation (PA DOT) in November 2018.  On December 17, 2018,  PA DOT issued a Letter of Authorization to Uber to begin testing of its autonomous vehicles (good for one year).

The Authorization is consistent with the Commonwealth’s Automated Vehicle Testing Guidance issued on July 23, 2018.

Significant changes to UATG’s testing, including its Safety and Risk Mitigation Plan, as authorized by PA DOT, are as follows:

  • Operate a limited number of vehicles;
  • Operate those vehicles only during daylight hours on weekdays;
  • Operate them only in good weather;
  • Operate in them in areas where most roads have restricted speed limits of 25mph;
  • Operate them with two human backup drivers;
  • Operate them with more highly trained and audited backup drivers;
  • Operate them with the automatic emergency braking system and Volvo emergency braking system in operation.

UATG commenced testing under the Notice on December 20, 2018.  Safety related to the testing of autonomous vehicles remains the subject of ongoing debate at the federal, state, and local and private levels. The proposed changes to UATG’s testing of its autonomous vehicles are consistent with Pennsylvania’s July Guidance and Uber’s November 2018 report. We will continue to monitor and review evolving public and private guidance on the safe testing of autonomous vehicles.


On December 11, 2018, Lyft was granted a patent by the United States Patent and Trademark Offices for an Autonomous Vehicle Notification System (Patent No. US 10,152,892 B2).  The System is designed with several functions, one of which produces a “talking car.”  Talking in the sense of the ability to flash notifications to people outside the vehicle with information such as “safe to cross” (for individuals on foot) or “safe to pass” (for cyclists).  The system can also designate other messages, such as “yielding” and “warning turning left/right”.

It seems that concerns about the safety of autonomous vehicles is on the rise; just last week vigilantes actually attacked an autonomous vehicle while traveling through Phoenix.  So, the use of direct communications between the autonomous vehicles and individuals could go a long way to gaining the trust of the public.  However, this system seems to raise a new issue: what if the autonomous vehicle notifies the individual of safe passage, but another vehicle (autonomous or not) fails to stop for the individual? Further, how will the technology determine when it’s safe to pass or cross, especially during the transition period where autonomous vehicles will be sharing the road with human drivers?

In the context of product liability litigation, the question becomes who then would be responsible if the individual is injured by the second vehicle? Would this be similar to situations where a human driver “waves” another person through what turns out to be an unsafe intersection?  Depending on jurisdiction, the driver indicating safe passage may be held liable for any subsequent injuries/damages, regardless of the negligence of those around them.  Where there is no driver, will the assignment of liability become more complicated?  Will juries now need to understand the technology and algorithms used to determine “safe to pass/safe to cross” notifications in order to determine if the system failed the individual?

While the notification system patented by Lyft definitely has the potential for creating a sense of security when autonomous vehicles interact with people outside the vehicle, it also raises new questions without answers.   The ever-changing landscape of autonomous vehicles today attempts to respond to issues as they arise, but in return they create new ones without answers. This cycle will continue to perpetuate itself for some time into the near future as our roads transition to autonomous vehicles.

U.S. states with autonomous vehicle laws

The Autonomous Vehicle Legislative Survey provides a description of latest actions (regulations, executive orders, committee investigations, or the like) regarding autonomous vehicles taken by each U.S. state and territory. The survey also includes analysis of how the position of each state compares to other states.

The survey is meant to be an evolving document.  It will be updated quarterly by its authors, Jodi Dyan Oley, Monakee D. Marseille,  and Karen O. Moury of Eckert Seamans,  to keep readers abreast of the ever-changing developments in this emerging topic.  The authors are also working on a survey of the U.S. cities that are at the forefront of autonomous vehicle testing and development.  If interested, please subscribe to the AI Blog for notifications of updates on our surveys.

Robert Campedel

In an “Expert Analysis” piece published by Law360, Eckert Seamans Member Robert Campedel addresses how the rise of autonomous vehicles and the transportation as a service (TaaS) industry are affecting the insurance industry, particularly in regard to product liability coverage. Read the full article on Law360. (Subscription may be required to access third-party content.)

Steven Kramer

In an “Expert Analysis” piece published by Law360, author Steven Kramer, member-in-charge of Eckert Seamans’ White Plains office, explores unique product liability issues that are coming into play in online marketplaces and companies involved in the transportation as a service, or TaaS, industry. Read the full article on Law360. (Subscription may be required to access third-party content.)