Law Quarterly

You Can’t Sue a Car

By Nicholas Bukofsky


With companies such as Tesla, GM, and even Uber racing to make the next breakthrough in transportation technology, the dream of streets lined with cars that drive themselves is now more than ever less of a possibility and more of an inevitability. A country, and eventually the world, where vehicles are driven autonomously and without the need for human operation seems likely at this point due to the fact that without the possibility of human error and misjudgement, autonomous vehicles will be a safer and more easily and widely accessible alternative to human-driven vehicles. However, no machine is without its malfunctions, and when an autonomous vehicle causes harm, upon whom will the liability fall according to the law?

Since autonomous vehicles are a fairly recent technology (though some have been manufactured they are far from being commonly driven) there is very little specific case law regarding them. In fact, the first instance of an autonomous vehicle causing harm was not until 2016, in which 40 year old Joshua Brown was killed when his self-driving Tesla Model S drove itself into a tractor-trailer.1 Although Joshua Brown’s estate chose not to press charges against Tesla, this event sparked the debate over whether Tesla had acted negligently by selling a product so easily misused, or whether Brown was at fault for choosing to misuse Tesla’s product. As autonomous vehicle technology becomes more popular and available and more autonomous vehicle tort lawsuits are filed as a result, this debate raises points that are likely to influence actual court decisions in the near future.

Many attorneys weighed in on the feasibility of building a case against Tesla soon after the Brown incident. Anthony Johnson, CEO of the American Injury Attorney Group, claimed that Tesla’s warnings about proper conduct as the car was driving itself were, “far from sufficient to exculpate them from liability.”2 From this point of view, although the car did warn Brown to take control of it himself, the warnings were not reasonably effective and thus Tesla could be held negligent. Johnson also argued that marketing Tesla’s assisted driving technology as “autopilot” implied that it was 100% self-sufficient, as is the autopilot in airplanes. If a court held this to be true, Tesla’s marketing of the “autopilot” systems could be deemed fraudulent, as the systems presently require human assistance to drive the car.

On the other side of the debate, Tesla argued that the warnings and guide to proper use that came with the car were disregarded by Brown, further noting “The system also makes frequent checks to ensure that the driver’s hands remain on the wheel and provides visual and audible alerts if hands-on is not detected.”3 They also argue that upon selling him the car with the assisted driving system he was informed that the system was in the Beta phase and turned off by default, meaning turning it on was Brown’s own willful decision. If this is the case, then Brown willingly assumed the risk associated with using the system, and Tesla would be absolved of liability for this issue, following the precedent set by Murphy v. Steeplechase Amusement Co (1929).4

Holistically, this debate, though it never went to court, may one day provide the legal justification for assigning liability in autonomous vehicle-related accidents. The points raised by each party must be weighed to place blame on the manufacturer, car seller, or the client accordingly. The issue of comparative negligence will likely be part of the debate; in the Brown debate, Tesla would likely have been held liable for a small percentage of the damages, since having any option in the car’s system that may imply it is reasonable for a driver to take their hands off the wheel and not pay attention to the road is negligent, although there are mitigating factors and partial assumption of risk by the driver that would likely reduce Tesla’s liability. Like Li v. Yellow Cab (1975), the fact that both parties bear some fault would necessitate that the comparative negligence of both parties be assessed by a court.5

When assessing each individual case of autonomous vehicle torts, the way in which the vehicle was marketed, how the vehicle was intended and stated to be used, if the vehicle was actually used that way, and what went wrong with the car’s systems must all be taken into account to determine liability. Marketing plays a role in determining liability because if the automated driving systems are presented as not requiring driver assistance but they do (as Johnson argues in the Brown case discussed above), the car seller could be held accountable for fraudulent sales tactics. The way that the vehicle is supposed to be used (which would likely be stated in an owner’s manual) versus how it is actually used is important because if the car driver uses the car exactly as they are told and still suffers harm, that harm is much more likely to be the fault of the car seller. Lastly, the specifics of what went wrong with the car’s systems must be examined because if it was a technical error or design flaw the seller or manufacturer would likely be held liable, but if the malfunction was caused by the driver’s misuse of the vehicle then the driver would bear the responsibility of the damages.

We have seen the beginnings of the logical arguments that will arise from tort cases of autonomous cars. Although they are largely an extension of current arguments and the precedents that will be created surrounding this issue will likely be similar to current precedents involving non-autonomous automobile accidents and malfunctions there are also some additional nuances and dimensions to this emerging field of debate and law. It may not be a large issue or topic of conversation right now, but as autonomous vehicles become better, cheaper, and more widely used, the legal intricacies of who pays when something autonomous fails are likely to come to the forefront of national discourse.


1 Rachael Abrams and Annalyn Kurtz, “Joshua Brown, Who Died in Self-Driving Accident, Tested Limits of His Tesla,” The New York Times (2016),

2 Nicky Woolf, “Tesla fatal autopilot crash, family may have grounds to sue, legal experts say,” The Guardian (2016),

3 The Tesla Team, “A Tragic Loss,”, last modified June 30, 2016,

4 Murphy v. Steeplechase Amusement Co., 250 N.Y. 479 (1929).

5 Li v. Yellow Cab Company of California, 532 P. 2d U.S. 1226 (1975).

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