As the ‘pilot error’ defense comes to an end, what will this mean for vehicle manufacturers?

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ATTI‘s legal automotive expert, Alex Geisler, laments the end of the ‘pilot error’ defense – and exactly what that means for car makers.

A very smart defense attorney, who’s also one of my friends from my industry circuit, has this advice for clients: “As long as there are people and trees, there will be accidents.” This flawless mantra reflects the ‘pilot error’ defense, beloved of counsel to auto makers. It goes like this: “Members of the jury, the accident was caused by one component in the car: the nut behind the wheel.”

Much as it pains me to say it, this defense has seen its best days, and defense attorneys who rely on it will become dinosaurs. Auto makers will need to adapt, and so will their counsel. Take the case of the much-publicized accident in California in March 2018 involving a Tesla Model X, driven by Walter Huang. The car was propelled at speed into a crash barrier, and Mr Huang died of his injuries. 

He was a young Apple employee, and of course it’s an absolute tragedy. But in any other era, in any other accident, if you’d said to me that we can prove that the driver was distracted by a video game, that he didn’t have his hands on the steering wheel, and that he was using the vehicle beyond its operational design domain, I’d expect to exonerate the OEM.

But those are exactly the findings of the National Transportation Safety Board report into the incident, and yet it was highly critical of Tesla.

It’s no exaggeration to say that when you slice and dice the NTSB findings, you come up with at least six main contributory factors, of which only one was the vehicle itself. Yet it’s clear from all the recommendations and from the guiding themes of the report that they regard the auto maker as being largely responsible for the crash. Not just responsible for the single contributory error state which they owned, but ultimately, for most of the root causes. How, then, is this possible? 

To many of us, the biggest and most overriding significant root cause was the performance of the driver. The report listed not one but three mistakes: 1) Becoming distracted; 2) Becoming complacent and over-reliant on the limited automation capabilities of what was, after all, only a Level 3 vehicle; and 3) Using the technology beyond its operational design domain. 

And yet, the primary focus of the NTSB recommendations is on the OEM, and how it’s the OEM’s job to protect vehicle users from their own shortcomings. 

It’s not just that the report disparages the technology, the areas of criticism are very telling too. It said the collision avoidance technology, the driving engagement monitoring system and the steering wheel torque monitoring sensor were all inadequate. Let’s reflect on that for a moment. It’s on auto makers to introduce effective systems to monitor driver engagement, and even driver steering wheel grip. 

If we join these dots, one of the unspoken themes of the NTSB report is that OEMs must expect dumb people to do dumb things. In Level 4 and 5 cars in self-driving modes it may matter less, but in Level 3 cars in autopilot mode, driver behavior is key. The onus is on auto makers to anticipate all the vagaries of the nut behind the wheel, and engineer them out of the car. In future, expect to see defense attorneys on industry panels with a new mantra. It will go like this: “As long as there are people, trees and algorithms, there will be accidents.” 

By Alex Geisler

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