The Infrastructure Investment and Jobs Act (the “Act”), signed into law on November 15, 2021, has been followed closely by the transportation sector. One section of the Act has the potential to impact the landscape of automotive products liability litigation.
Section 24220 requires automobile manufacturers to equip new passenger vehicles with advanced drunk and impaired driving prevention technology. Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, § 24220, 135 Stat. 429, 831-833 (2021).
This provision raises vital questions regarding the liability of manufacturers and drivers for partially autonomous vehicles – an area of products liability law that has yet to be developed by the courts.
What Does Section 24220 Require?
Section 24220(c) requires that the Secretary of Transportation issue, no later than November 15, 2024, a “final rule prescribing a Federal motor safety standard . . . that requires passenger motor vehicles . . . be equipped with advanced drunk and impaired driving prevention technology.”
“Advanced drunk and impaired driving technology” is defined as a system that can:
- Passively monitor the performance of a driver of a motor vehicle to accurately identify whether that driver may be impaired and prevent or limit motor vehicle operation if an impairment is detected; or
- Passively and accurately detect whether the blood alcohol concentration (“BAC”) of a driver of a motor vehicle is equal to or greater than BAC 0.08 and prevent or limit motor vehicle operation if a BAC above the legal limit is detected; or
- A combination of the systems described in (A) and (B).
Once the Secretary of Transportation has promulgated the safety standard under Section 24220, manufacturers have no more than three years to comply with the standard.
How Do Autonomous Vehicles Fit into Section 24220?
The definition of advanced drunk and impaired technology in Section 24220 calls for “passive” monitoring or detection. Passive alcohol detection systems use sensors that are integrated into the car that can passively determine if the individual behind the wheel is under the influence. Thus, Section 24220 regulates technologies that are akin to the driver-sensing features frequently used in conjunction with partially autonomous driving.
These passive alcohol-detection systems are not new. Indeed, in response to a Request for Information regarding impaired driving technologies, Mothers Against Drunk Driving (MADD) indicated there were at least 241 examples of such technology. Therefore, the feasibility of the mandate is not really in question. Rather, the focus becomes how Section 24220 will impact the liability of an automobile manufacturer when the technology is equipped, and an accident occurs.
What Are the Liability Implications of Section 24220?
How products liability law will handle autonomous or partially autonomous vehicles is a question that has been debated for years but has yet to be thoroughly tested. The dispute has been centered on how liability will be apportioned among the automobile manufacturer, the manufacturer of the autonomous technology at issue, and the driver/operator. Section 24220 of the Act may signal how these issues could be determined in the future.
For example, say a car equipped with Section 24220 technology malfunctions and fails to detect that the driver is impaired, and the driver causes an accident. If a civil lawsuit is filed against the driver and the automobile manufacturer, where will the ultimate liability fall? Without Section 24220 technology, the answer would seem to be clear: the driver should be held civilly liable as they were driving while under the influence. However, when manufacturers are required to equip technology that would detect impairment and prevent operation of the vehicle, the question becomes more complicated. When the manufacturer of the software is different than that of the manufacturer of the automobile, further layers of potential liability are added.
Thus, it is easy to see how Section 24220 has the potential to generate potential exposure in future lawsuits that involve partially or completely autonomous vehicles with human “drivers.” Such foundation may provide some framework for how the courts eventually approach liability when faced with an entirely autonomous passenger car that is involved in an accident.
What about Federal Preemption?
Section 24220 also raises questions of federal preemption. Once a safety standard under Section 24220 is issued, the provisions may ultimately include expressive preemption language that will prohibit certain products liability actions against the automobile manufacturers. Or, if such language is absent, the Courts may need to interpret the final safety standard for implied preemption of certain state tort claims.
Whether the federal government decides to include an express preemption clause in the final safety standard will be notable, as it may indicate how the federal government will handle the regulation of autonomous passenger vehicles. Further, the Courts’ ultimate interpretations of the safety standard will likewise provide manufacturers with insight as to how products liability lawsuits involving autonomous vehicles may be handled moving forward as well.
Section 24220 is worth watching, as it could carry important implications for the potential liability and regulation of partially and fully autonomous vehicles in the future.