Who’s liable when autonomous cars are involved in accidents?OCT 10, 2017 | BY DAVID J. OBERLYEMAILLINKEDINTWITTERFACEBOOKGOOGLE+SHARE THIS STORYThe Tesla Model S is an electric car capable of operating fully autonomously. (Photo: P. Harman/PC360)Desktop computers. Mobile phones. Wi-Fi.Seemingly almost overnight, these advances in technology have fundamentally transformed the way society operates and functions on a daily basis.However, these and other modern technological developments may pale in comparison to the impact felt in connection with the introduction of autonomous vehicles onto our nation’s roadways.Today, the world’s leading car makers are racing to build fully autonomous vehicles. The goal for many is to have self-driving cars on the road by 2020. The benefits of this advanced technology will be significant, as autonomous vehicles will substantially reduce the number and severity of accidents caused by human error — the primary catalyst for the vast majority of current automobile accidents. However, the benefits will extend well beyond roadway safety to matters such as aiding in traffic congestion and improving the efficiency and effectiveness of transportation systems.The rise of this new technology brings an array of unique and thorny legal issues that will cause wholesale changes to many different areas of the law in the years to come. By far the most predominant legal issue concerning the advent of autonomous vehicles pertains to liability for accidents involving self-driving cars.Related: Tesla automation faulted by NTSB in 2016 fatal Florida crashRemoving human error from roadways doesn’t mean that accidents and the resulting litigation will no longer exist. (Photo: iStock)The shift to products liability lawHuman error is the predominant cause of automobile collisions today. Contrary to humans, however, autonomous vehicles don’t drink and drive, text and drive, or otherwise get distracted at the wheel. As autonomous vehicle technology becomes standard, there will be fewer negligent people on the road, which will negate the primary rationale underpinning motor vehicle accident litigation today — driver negligence.While the human error element may be removed from our roadways, it does not mean car crashes and related litigation will become a thing of the past. Rather, the type of litigation that arises out of car crashes will change. Instead of focusing on driver negligence, future litigation involving autonomous vehicles will focus on the safety of the self-driving vehicles involved in the collision.Accordingly, motor vehicle accident litigation will shift from driver negligence—and liability on the part of the operator—to products liability, making the automotive industry the principal responsible party for liability-related matters. Consequently, while vehicles and roadways become safer, vehicle manufacturers, technology manufacturers and other suppliers will almost certainly see their liability exposure increase considerably, with the autonomous automotive industry bearing a bigger slice of a smaller pie of total accident costs.Related: Crash test: An inside look at the Insurance Institute for Highway SafetyPhoto: Shutterstock4 keys to determining product liabilityProducts liability law has already been applied to many types of famous litigation involving automobiles, including the Ford Pinto’s fuel system, Takata air bags and Firestone tires. As such, existing liability frameworks exist to assist in resolving the legal issues that will arise in connection with autonomous vehicles.Fortunately, modern products liability law is adequately developed to allocate fault for injuries and damages stemming from autonomous vehicle accidents, which will allow litigants to utilize the current law to answer the question of whether an autonomous vehicle is at fault for a collision. Moving forward, the legal framework for autonomous vehicle accident liability will be segmented into strict product liability, breach of warranty liability, misrepresentation liability and negligence liability.Related: Autonomous vehicle technology could shrink auto insurance sector by 71%(Photo: Shutterstock) Products liability litigationStrict liability is the dominant legal theory in products liability litigation, and is thus poised to be the theory most consistently applied to autonomous vehicle accident litigation. Strict products liability requires that: (1) the product was defective when it left the manufacturer’s control; (2) the product was unreasonably dangerous; and (3) the defect was the proximate cause of the injuries.As automobiles become more autonomous, manufacturing defects will likely represent a large portion of defect claims, as errors on the production line will never vanish completely. Here, manufacturers can be found strictly liable for manufacturing defects even if they have exercised “all possible care” in manufacturing the vehicle. Similarly, the automobile industry will almost certainly see an upt
“Do I get my attorney’s fees back?” This is often one of the first questions I get from a new client who’s been sued. And this is understandable. After all, my new client doesn’t believe she should’ve been sued, and is now having to hire an attorney.
As difficult as the answer is, it is almost always probably not. Here’s why. There is a bedrock principle known as the American rule. This rule provides that each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise. The theory is that having a contrary rule – loser pays – would deter and limit access to our courts and ultimtately from receiving justice. This rule is not without its critics, but remains a deeply rooted concept in the U.S.
As a result, many of the general negligence actions such as car accidents and slip and fall injuries do not allow a party to recover attorney fees from the other side – win or lose. There are however a few exceptions.
The most common exception involves a suit over a contract which specifically provides for recovery of attorney fees. For example, loan documents from a bank almost always have such language. If you are sued for failing to repay a loan, the bank will also seek recovery of its attorney’s fees under to the loan contact.
There are statutes that also provide for recovery of attorney fees. Under Mississippi law, some of those include some shareholder derivative actions; open account collections provided certain prerequisites are met; Mississippi Uniform Trade Secrets Act; Unsolicited Residential Telephonic Sales Call Act (a/k/a “The no-call list”). At the federal level there are similar statutes such as those governing antitrust actions, civil rights actions, class actions, copyright and patent infringement matters, Freedom of Information Act suits and Lemon law matters.
In addition, most jurisdictions have statutes and rules allowing for recovery of attorneys’ fees for the filing of frivolous or baseless claims. In my experience, however, the other side never agrees that the action is in fact frivolous.
Under Mississippi’s Litigation Accountability Act a frivolous action is one “without substantial justification,” or “groundless in fact or in law, or vexatious, as determined by the court.”
Similarly, nearly every jurisdiction has procedural rules that may allow sanctions. These can be imposed when an attorney or party files papers with the court that were submitted solely to harass the other side, unnecessarilly delay the action, or needlessly increase the cost of litigation.
In Mississippi, the primary rule is Rule 11 of the Mississippi Rules of Civil Procedure. Like the Litigation Accountability Act, the question again arises of what exactly makes a claim frivolous. To determine this Mississippi courts look to see if there was any hope of success. Again, it’s a bit of a nebulous concept, and certainly the party asserting the claim will argue that there was indeed some hope that he might succeed.
Because of these difficult standards and the court’s inherent dislike of limiting litigants access to courts, sanctions of this type are rare.
Recently, the United States Supreme Court in Goodyear v. Haeger, reviewed sanctions awarded during an action for particularly egregious discovery violations. The court unanimously ruled that a judge must determine which fees and costs would not have been incurred “but for” the misconduct. To award more would be a punitive award which requires additional due process similar to a criminal defendant under the Constitution. Thus, the Court can only assess “fees the innocent party incurred solely because” of that misconduct.
This is yet another example of the Courts timid approach to sanctions and illustrates its general dislike of awarding them. And even when they may be justified, that should be carefully reviewed and limited to fit the actual costs or harm incurred.
You’ve Been Served
First, don’t panic. Lawsuits are filed every day. And there are few barriers to filing one. Anyone can craft a complaint and file it. What matters now, is how you respond.
A civil action will begin with a Complaint or sometimes a Petition or Declaration. Those documents are typically served by a process server or deputy sheriff. The summons will provide you with a date to respond, or sometimes a specific court date for you to appear in court. Don’t ignore these dates.
Answer the Complaint
Complaints must be “answered” within a specific time which is governed by the court’s rules. By answering you can assert your side of the allegations and there may very well be defenses that can cause the lawsuit to be dismissed at this stage. In addition, there may be a related counterclaim that you may be required to assert at this stage or waive that opportunity.
Failing to timely answer may cause a default judgment to be entered. This effectively means you lose before ever defending yourself. For example, you receive a complaint claiming you owe $10,000. You have undeniable proof that you paid the entire sum. A default judgment would likely be entered for the entire $10,000 and you could be liable to pay the entire amount again.
Discover the Facts
After the complaint is served and the answer is filed, in most cases, “discovery” begins. At this stage, the parties gather as much information about the allegations and defenses as possible. Here, each side serves written questions and requests copies of any supporting documents from the other side. In addition, the parties may depose one another as well as witnesses. A deposition is an informal questioning session, somewhat like what you might see in court that is transcribed by a court reporter. However, the evidentiary rules are usually very lax to allow the parties to fully explore the testimony and allegations that may ultimately be offered at trial. However, not everything learned in the discovery phase is admissible at trial.
Settlement and Mediation
Around 95% of civil lawsuits settle before trial. After the completing discovery, the parties and their attorneys often have a good idea the appropriate result. Usually the parties will want to discuss settlement. However, even with the discovery it is common to seek the help of a neutral mediator to assist the parties to reach a resolution. A mediation is a meeting held with all the parties in a single location. The mediator will shuffle between the parties attempting to broker settlement.
At some point between completing discovery and trial, one or more of the parties may seek to dismiss the case by a motion for summary judgment. Such a motion is an effort by a party to show that based on the discovery that that a party does not have enough facts to support one or more of their claims at a trial. If the court agrees with the motion the case will be dismissed or at least some of the claims or defenses may be dismissed. This is called a partial summary judgment and when this happens, only the surviving claims will proceed to trial.
The trial is the part of a lawsuit that most people are familiar with from movies and television. Though they are rarely as exciting as movies portray. Trials can be either before single judge or jury. It depends on the type of case and the court where the case is filed. In either case, the evidentiary rules will apply and all testimony and evidence must meet these standards before presented at trial. This can be frustrating at times as some evidence may never be admitted at trial that was freely discussed during discovery. And, of course, at the end of the trial the judge or jury will decide the issues and a judgment will be entered.
Once a judgment is entered, the parties may appeal seeking an appellant court’s review. The typical appeal seeks a review of how a particular law was applied to the facts presented at trial. However, changing the ruling on appeal is rare. Moreover, an appeal can take several years before the issues or finally reviewed.
If you’ve been served with a complaint, consult with an attorney as soon as you can. Lawsuits are expensive and taxing on the persons involved. Addressing the issues directly and early can lead to substantial savings for all involved.
“Modest” Overstatements of Amount Due and Interest Rate Actionable Under FDCPA, Ninth Circuit RulesFriday, September 1, 2017A debt-collection law firm’s overstatements in a state court complaint of $3,000 in the principal amount due and 0.315 percent in the interest rate were actionable under the Fair Debt Collection Practices Act (FDCPA) as material false statements, the U.S. Court of Appeals for the Ninth Circuit has ruled. In Afewerki v. Anaya Law Group, the creditor that hired the law firm to collect the debt provided the law firm with the correct principal amount and interest rate. The law firm discovered the overstatements in the complaint while preparing its response to a demand for a bill of particulars from the debtor’s attorney. The law firm asserted that the overstatements were inadvertent and filed a notice correcting the errors within 12 days of receiving the demand from the debtor’s attorney. In his lawsuit filed in federal district court, the debtor alleged that the overstatements violated the FDCPA and California’s Rosenthal Fair Debt Collection Practices Act (Rosenthal Act). The district court granted the law firm’s motion for summary judgment, concluding that the errors in the complaint were not material. The FDCPA prohibits debt collectors from making false statements when attempting to collect debts. The Ninth Circuit described the requirement that a false statement must be material to be actionable under the FDCPA as a corollary to the “least sophisticated debtor” standard. According to the Ninth Circuit, a false statement is material if it could “cause the least sophisticated consumer to suffer a disadvantage in responding to the collection attempt.” While noting that a materiality inquiry focuses on the reaction of a hypothetical least sophisticated debtor rather than on the plaintiff’s reaction, the Ninth Circuit observed that “the district court’s determination that [the plaintiff] would not have proceeded differently absent the error might mean that he did not suffer actual damages and might disqualify him from obtaining such damages.” The Ninth Circuit treated the law firm’s correction of the overstatements as irrelevant in determining whether the errors were material (but noted that the law firm had not attempted to invoke the FDCPA’s bona fide error defense). In the court’s view, the least sophisticated debtor in the plaintiff’s position, concerned about being sued, “may well have simply paid the amount demanded in the complaint and would have overpaid by approximately $3,000.” The court also raised the possibility that the state court case could have proceeded to a default judgment for the overstated amount, citing a California decision that held a creditor was not required to prove the amount sought was correct prior to entry of a default judgment. The Ninth Circuit vacated the district court’s grant of summary judgment in favor of the law firm on the FDCPA claim but affirmed its grant of summary judgment in favor of the law firm on the Rosenthal Act claim. While observing that the Rosenthal Act incorporates the FDCPA’s false-representation prohibition, the Ninth Circuit concluded that the law firm could avoid civil liability under the Rosenthal Act by relying on its 15-day cure provision, and rejected the plaintiff’s argument that 1999 amendments to the Act removed the cure provision.
Florida Judge says the trial must go on, despite celestial events.
Judge Merryday denied the United States Attorney’s motion, that “… boldly moves (where no AUSA has moved before) to postpone a trial because an agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, has pre-paid the cost of visiting the zone of “totality” of a solar eclipse.” Unimpressed with the motion, and apparently the eclipse itself, the opinion notes, “An eclip
se is just another astral event, precisely predictable since the day the Babylonians discovered the governing formula (although some contend for an earlier discovery).
Here’s the full opinion:
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
UNITED STATES OF AMERICA
v. CASE NO. 8:17-cr-266-T-23JSS
Definitely recurrent, sometimes consequential, and occasionally spectacular,
the solar eclipse understandably occupies a provocative and luminous place in
history and in art. For example, Herodotus reports that a solar eclipse during the
war between the Medes and the Lydians caused the combatants, who interpreted the
eclipse as a divine omen, to suspend hostilities and to negotiate peace. In Borodin’s
magnificent opera, an eclipse portends disaster for Prince Igor’s military campaign
against the Polovtsians. In a popular 1970s song, the splendid Carly Simon
introduced the attendance of a former suitor (reportedly the actor Warren Beatty) at
a solar eclipse as probative evidence of his putatively insufferable vanity:
Well I hear you went to Saratoga
And your horse, naturally, won
Then you flew your Learjet up to Nova Scotia
To see the total eclipse of the sun
Well, you’re where you should be all the time
And when you’re not, you’re with some underworld spy
Or the wife of a close friend,
Wife of a close friend, and
You’re so vain
You probably think this song is about you
On a higher plane, Wordsworth wrote about an eclipse in 1820:
High on her speculative tower
Stood Science waiting for the hour
When Sol was destined to endure
That darkening of his radiant face
The solar eclipse is no longer mysterious, supernatural, foreboding, or
ominous (or even “total”; owing to the solar corona, the darkness of a “total” eclipse
is only partial). An eclipse is just another astral event, precisely predictable since the
day the Babylonians discovered the governing formula (although some contend for
an earlier discovery).
On this occasion, an Assistant United States Attorney boldly moves (where no
AUSA has moved before) to postpone a trial because an agent of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, has pre-paid the cost of visiting the
zone of “totality” of a solar eclipse that will occur on August 21 (about the eclipse,
the motion oddly uses the phrase “scheduled to occur,” as if someone arbitrarily set
the eclipse, as an impresario sets a performer, to appear at a chosen time and place,
subject always to some unstated exigency).* Cruel fate has dictated that the August
21 eclipse will occur during the trial of an action in which the agent is a principal
participant on behalf of the United States.
In any particular month, about four-hundred actions pend before each active
district judge in the Middle District of Florida; each action typically involves several
lawyers, at least two parties, and an array of witnesses. A trial prompts the clerk to
summon scores of potential jurors. The present motion proposes to subordinate the
time and resources of the court, of the opposing counsel, of the witnesses, and of the
jurors to one person’s aspiration to view a “total” solar eclipse for no more than two
minutes and forty-two seconds. To state the issue distinctly is to resolve the issue
When an indispensable participant, knowing that a trial is imminent, pre-pays
for some personal indulgence, that participant, in effect, lays in a bet. This time,
unlike Carly Simon’s former suitor, whose “horse, naturally, won,” this bettor’s
horse has — naturally — lost. The motion (Doc. 31) is DENIED.
ORDERED in Tampa, Florida, on August 18, 2017.
- According to the motion of the United States, a total solar eclipse last occurred in June
1918. (Doc. 31 at 2) But total eclipses occur far more frequently than the United States claims; the
National Aeronautics and Space Administration identifies six opportunities in the last decade to
view a total eclipse. Eclipses and Transits, Nat’l Aeronautics & Space Admin., available at
The Oxford Police Department is reporting that “skimming” has occurred at some of our local businesses. Check out these tips on how to avoid credit card skimming before you swipe your card at the ATM or the gas pump.
Have a save and Happy Fourth of July
John Adams said that Independence Day “ought to be commemorated as the day of deliverance by solemn acts of devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one end of this Continent to the other from this Time forward forever more.” So before you celebrate the Fourth of July and ring the bells and light the bonfires, take a moment to read the document that started it and detailed some of the guiding principles of our country.
Declaration of Independence: A Transcription
In Congress, July 4, 1776.
The unanimous Declaration of the thirteen United States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Thomas Heyward, Jr.
Thomas Lynch, Jr.
Charles Carroll of Carrollton
Richard Henry Lee
Thomas Nelson, Jr.
Francis Lightfoot Lee
Robert Treat Paine