NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist to those business items. My nes—my—m—How did I get a stutter all of a sudden? My name is Nasir Pasha.
MATT: And I’m Matt Staub. You know, I was actually thinking, right before that happened, I was like, “Wow. This is the first time you did two intros that were normal and you didn’t screw up on.”
NASIR: I know, Monday’s episode did come out a little too normal so I had to twist it up a little bit.
MATT: Yeah, you went all Porky Pig on us. Is that who that is?
NASIR: Yeah, pretty much. Porky Pig represents the stuttering community which, apparently, I’m ready to join.
MATT: So, we have a pretty interesting thing to talk about. Well, I don’t know. You were way more interested in this than I was. I’m not really sure why but I’ll give my summary and then you can give your summary of it. But, from what I can tell, it’s basically Delphi – I believe I’m pronouncing that correct – had a driverless car and Google had a driverless car. Apparently, they almost got into an accident, but they didn’t. That’s how I see this story. But you were way more intrigued about this thing than I was.
NASIR: Yes, that is accurate, I would say. The internet kind of got interested in this and maybe it was just kind of the time that I happened to be surfing because, you know, as we know, driverless cars are kind of coming about and really making its way into actual roads and, when you have two driverless cars almost get in an accident but they don’t, it’s as if, like, “Okay, we’re getting closer to that point where we just have a bunch of cars zipping around without people in the driver’s seat.”
MATT: From the accounts here, and I think both sides are kind of really downplaying this, especially Google – no, sorry – especially Delphi that says the vehicles didn’t even come close to one another because they actually had an official in one of the cars and basically said the Google car cut it off and the Delphi car took the appropriate action and didn’t change lanes and that was that. But I’m not sure how fast these were going but the Google cars that are driving around now are going, like, five miles an hour that are going around taking photos of Street View and everything. Even if they did hit each other, it’s not going to be significant by any means. But what about when it gets to the point – assuming it does get to the point – where these cars are going down the highway and there’s an issue of a lane change that’s obviously a much bigger issue at that point.
NASIR: I think they’re going faster than five miles per hour, right?
MATT: The instances of other issues where the Google car, the ones that do Street View and everything, have been in wrecks, I think they’ve every time said it was the fault of a human driver but the actual accidents have been very slow speeds that cars have been traveling. That’s why I assumed. They could have been going faster. I’m not really even sure.
NASIR: Well, actually, Google’s car, I think they’ve had three-plus accidents over the last few years of nonstop driving and all the accidents were – you’re right – they were caused by other drivers, actually. For example, the car would stop at a light and they’d be hit from behind or something to that effect. You know, whether they could have stopped later or whatever, given more room in the back, obviously, Google’s car isn’t responsible for that. But, anyway, the point is that I think they’re on regular roadways but it begs the question that, okay, what are some of the liability aspects that are going to come from these types of cars? And not only these types of cars but, also, what if your employees start driving these types of cars? Or, in general, what is the liability of your employees driving cars out there in the result of an accident? What happens?
MATT: Yeah. I mean, that’s the first step. We’re not going to get into, let’s say you sold goods and you have a driverless semi-truck because that’s obviously a whole other ballgame but, yeah, what if you do have these driverless cars for the business? What are you saying – to transport employees?
NASIR: Well, let’s talk about employer liability in general first then we can see how that applies in the driverless car world. Basically, if you have an employee – and it makes a difference whether it’s an employee or contractor – if it’s an employee and they’re doing something related to work and they’re out there on the road and they get into an accident, generally, the employer is going to be liable, okay? Even if the employee is negligent – you know, they ran a red light or what-have-you. And so, now, there are exceptions to that. For example, there’s a standard rule that employees that are going to work or coming from work, they’re not on the job duty. But, if they go for lunch, for example, but they’re told, “Oh, can you pick up the copies from Kinko’s,” – I guess it’s called FedEx now, FedEx Copy Center – “pick up the copies from there on the way home,” then, technically, that lunch break would be in the scope of that work and, if that person got into an accident, then the employer could be held liable, and there’s a lot of exceptions like that.
MATT: Yeah, and that’s what I was kind of getting to. Cars aren’t going to be taking the employees to and from work – the commute. It’s going to be those other instances like you said, and, of course, we’ll qualify this with there are exceptions to everything. Generally speaking, some examples that are common that employers might be held liable – when an employee has no fixed place of employment and travels to multiple job sites; when an employee injures themselves while traveling to a location away from their normal job site; when an employee is on a special assignment for the employer, I think that’s the example you just said; and then, travel is a significant part of the employee’s job duties. What was the term for in torts?
NASIR: It was “frolic.” That’s a reference that most people won’t get but, yeah, basically, the concept is, if the employee is part of the job, is on the job out on the car but takes a detour to get a drink from 7-Eleven or something like that and the question is, okay, is that a detour or is it a frolic? I think there’s a difference.
MATT: Frolic and detour, you’re right.
NASIR: I think, if it was like an incidental detour like, “I’m just going to pick something up on the way,” a detour is still within the scope whereas a frolic is more like, I don’t know, on my way to pick up the copies, I’m going to go to the other side of town and visit my sick aunt or something. I don’t know. I think that would be considered more of a frolic, if I recall my tort days.
MATT: Yeah, I just like the name. I mean, I think, if anything, I’m just trying to think and there’s really no law out there right now in terms of employer liability and there’s no cases because it hasn’t happened yet. I mean, Google and these other ones have been involved in things but there’s not really anything out there for us to judge it on at this point so…
NASIR: Well, what’s interesting is that, if there is and let’s say you do have an accident with a driverless car and somehow the driver – which is weird to say – is held at fault – or the car, you know – then now the question is who’s really at fault? Is it the driver or the employer or is it Google or the manufacturer of the driverless car – that maybe there was some defect or it didn’t operate as expected? That’s what’s so weird about this from a liability perspective of these driverless cars. If there’s an accident, whose fault is it? Because, if there’s no one driving it, then the only person that could be to blame is either the other vehicle, the non-driverless car, or the driverless car because somehow it didn’t operate as it was supposed to or (1) which would be some kind of manufacturing defect or because it didn’t contemplate or react in the situation that it was designed to do. Somehow, there was a programming mistake of some sort and that would be a design defect. In either case, the manufacturer is strictly liable.
MATT: Yeah, and I think it would be the same thing now even if the employee was driving the car. I think the big difference is going to be this. You have an example where your employee’s driving the car, part of the job, and they hit somebody, and then you have an example too where your employee is sitting in a driverless car and it hits somebody. Both examples, you have the person that gets hit can come after the employer. I mean, I think that’s pretty straightforward in terms of what, you know, regardless of who else they go after, whether it’s the employee or what-have-you. But, in both instances, they can go after the employer. I think the difference is, in the second example, the employee who’s inside the driverless car at that point, I think they would go after the employer as well as opposed to, if they were the one driving the car and they’re at fault…
NASIR: I mean, obviously, if it’s not their car and there’s no property issues there but there’s also workers’ comp. So, unless it’s in Texas or whatever, if it was a personal injury, that would be covered. It is an interesting kind of dynamic there.
MATT: My example was a Kroger driver in Texas.
NASIR: Oh, okay, perfect.
MATT: So, no workers’ comp.
NASIR: No workers’ compensation and he gets into an accident in a driverless car. It’s one of those hypotheticals that a law student would ask – things that would never ever happen but they like to ask those hypotheticals.
MATT: A bar exam essay question, essentially.
NASIR: Yeah, precisely.
MATT: You raised a good point, too. You have the employee, it’s their driverless car, and they’re driving and then something happens then. I mean, that’ll throw in more of a wrench into it. Are there even any rules right now in place in the US that you can’t have a driverless car?
NASIR: The only cars that are allowed to be driverless right now are for testing purposes, experimental purposes, and within a limited geographical range, I believe so. They actually had to make a special exception. And what actually makes a car driverless, if you think about it? Because, already, we have cars that can park themselves, that can brake automatically, and that can cause all these issues. You know, we’re trying to relate this to kind of business law but just this very interesting aspect of personal injury attorneys are probably dialing in and focusing on these issues because more and more are these manufacturers going to becoming into play when there are such accidents because, in theory, these accidents are going to be decreased because of these safety features. But the question is when these features fail that it becomes a litigation issue.
MATT: If people are really interested, I don’t know who made this chart – if it’s anyone, oh, SAE – but there’s actually five levels of automation for cars. It’s actually a very comprehensive chart.
NASIR: I’m trying to find it.
MATT: Level five is fully automated. That would just be, like, you or I sitting in the car while it’s driving itself. Level one and two are pretty low level. I think that’s what’s out there right now which is lane departure assistance which exists in cars and anti-lock brakes – things like that. And then, three and four get a little bit more… Five is fully automated which is you’re just sitting there, letting the system… Just looking at this chart, I can just see, you know, this is a thousand different court decisions that need to be hammered out on this just because there’s so much going on of, “Oh, this is a level three automation and a human driver is the fallback performance,” and on the other side it would say, “This is a level four where the system is the fallback.” It’s kind of a mess.
NASIR: Yeah, SAE is, I assume, some kind of trade organization for self-driving cars. Pretty interesting, actually. I don’t know, maybe we’ll link this chart.
MATT: Did you find the chart?
NASIR: I don’t know if it’s the same exact design but, definitely, I see the level zero through five – zero being no automation and five being full automation.
MATT: Yeah. See, I mean, obviously, there’s a lot of stuff that needs to be played out with this but, yeah, I mean, on an employer level or on a business level, you know, I mentioned the thing at the beginning about, if you’re transporting inventory in a driverless semi or something, that’s going to be something different. But, if it is one of your employees that’s involved in this driverless car, I mean, that’s just another consideration that you’ll have to make as an employer and I can see it actually being advantageous just because, according to statistics, the crash rate of driverless cars could be as low as ten percent of accidents involve a human driver. If those numbers are accurate, obviously, very small sample size – or I don’t even know if it’s even a sample size, maybe it’s a speculation but, if that’s the case, I mean, it could be a good thing for employers because there might be less accidents.
NASIR: If that’s true, that’s crazy because auto accidents are one of the number one – not “the” number one but one of the – top five, at least, of causes of death and injury in the United States – and the world for that matter. But I think we’re still a time away to that though. That’s the only problem.
MATT: Quite far away. Would you say these are robots – the cars?
NASIR: It depends what you define as robot. I think it’s considered a robot.
MATT: Well, because robots, one of their rules is they’re not supposed to harm human beings, right? Isn’t that one of the… well, I don’t know if you saw, but an automotive assembly line robot killed a worker in Germany this past week as they were installing the robot at a Volkswagen assembly line.
MATT: The new Terminator movie is coming out as well so we all know how that works.
NASIR: Yeah, exactly. That’s a great reference. Well, the definition of a robot is “a machine capable of carrying out a complex series of actions automatically, especially one programmable by a computer.” Both the Terminator and driverless cars would fall into that category.
MATT: I don’t think the Terminator got programmed correctly.
NASIR: Yeah, it has some manufacturing defects, for sure.
MATT: There’s an obvious way to end this episode, by the way, and I don’t know if you’re going to figure it out.
NASIR: I already figured it out and I’m reluctant to hear what you’re going to say but I’ll definitely see you guys later.
MATT: Well, I was going to say “keep it sound, keep it smart,” and, “I’ll be back.”
NASIR: Very good.