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SELECTED 2013-2017

Self Driving Car Related Fatality: Can TESLA be sued?

What Happened?

We have consolidated several reports in one. Based on information, on May 7 at 3:40 p.m. on U.S. 27 near the BP Station west of Williston, Florida, a 45-year-old Ohio man was killed when his Tesla drove under the trailer of an 18-wheel semi. The top of Joshua Brown’s 2015 Tesla Model S vehicle was torn off by the force of the collision. The driver, Frank Baressi, 62, and owner of Okemah Express LLC, said the Tesla driver was “playing Harry Potter on the TV screen” at the time of the crash and driving so quickly that “he went so fast through my trailer I didn’t see him.”

He added, “It was still playing when he died and snapped a telephone pole a quarter mile down the road,” Baressi told The Associated Press in an interview from his home in Palm Harbor, Florida. It is unclear whether Tesla’s systems would allow a movie to play while the car was being driven or if it was playing via a seperate device and there were no references to the movie in initial police reports.

There is no evidence of speeding at the time of the crash. The car continued to travel east on U.S. 27A until it left the roadway on the south shoulder and struck a fence. The car smashed through two fences and struck a power pole. The car rotated counter-clockwise while sliding to its final resting place about 100 feet south of the highway.

Brown hailed from Stow, Ohio where he owned NexuInnovations and was a 12 year veteran of the US Navy. From his bio:

I attended the University of New Mexico, Albuquerque for three years studying physics and computer science.  Following my junior year, I enlisted in the US Navy serving 11.5 wonderful years on active duty as a Master Explosive Ordnance Disposal Technician (EOD).  While deployed numerous times overseas, in both warfighting and non-combatant roles with SOF (Special Operations Forces) units, it was my pleasure to work with the most intelligent, innovative, and independent patriots I have ever met.  My duty stations included: Information Technology A School, BUD/S, NDSTCNAVSCOLEOD, EODMU3, KTOD ACTD, and NSWDG.  These opportunities allowed development of my operational experience as well as understanding and associations within the research and development (R&D) community.

His obituary is here- http://www.legacy.com/obituaries/ohio/obituary.aspx?pid=179994314. Our thoughts and prayers to all involved. This was a tragic accident.

UPDATE: DVD Player

TESLA-AUTOPILOT-DVD-Fatal-crash A DVD player was purportedly found in the Tesla car that was on autopilot. Whether the portable DVD player was operating at the time of the crash has not been determined. A witness said he did not see it playing, contrary to other witnesses and the semi-truck driver.

Tesla’s Response

Tesla revealed the crash in a blog post posted today and says it informed the National Highway Transportation Safety Administration (NHTSA) of the incident, which is now investigating. Tesla blamed the driver, in part, and the conditions, in part, indicating that nither the driver — who Tesla notes is ultimately responsible for the vehicle’s actions, even with Autopilot on — nor the car noticed the big rig or the trailer “against a brightly lit sky” and brakes were not applied. In a tweet, Tesla CEO Elon Musk said that the vehicle’s radar didn’t help in this case because it “tunes out what looks like an overhead road sign to avoid false braking events.”

Further, “Autopilot is getting better all the time, but it is not perfect and still requires the driver to remain alert.” Tesla says Autopilot has been used for more than 130 million miles, noting that, on average, a fatality occurs every 94 million miles in the US and every 60 million miles worldwide. The NHTSA investigation, Tesla says, is a “preliminary evaluation” to determine if the Autopilot system was working properly, which can be a precursor to a safety action like a recall.

Tesla’s View of Their Own Liability

Elon Musk, chief executive officer of Tesla Motors Inc., discusses Tesla’s “auto-pilot” feature, autonomous driving, government regulations, and legal liability in this video:

It’s also worth noting that Tesla has periodic listings for hiring general counsel, such as this one, including with the role to, “Identify areas of potential litigation or regulatory risk and counsel the business to minimize exposure in such areas as advertising, privacy, and product liability.”

Tesla’s Liability

We disagree. This is an open field and judges and legislatures will need to look at what happened and the relative faults of all involved and define what the law will be. Incidents like this simply haven’t happened often enough to set precedent.

The “black box” and other data recorded at the scene and any information about movies and driving conditions will need to be analyzed. This will be a complicated case and require intensive investigation, assuming Tesla hasn’t already settled and resolved any claims with the family. It probably already has, so as not to publicly litigate its deficiencies and faults which may have caused this death.

Regardless, we feel that there is fault upon Tesla, regardless of disclaimers and operation instructions. There may even be contracts and arbitration agreements at play. Even other experts in the field have critiqued Tesla’s design and operation, warnings and defaults related to its “automated driving” / “Autopilot” mode.

Comparative fault

Applying fault to those involved is one of the most challenging factors in the aftermath of a car, truck or motorcycle accident and is left up to a jury in tough cases. A key component is the DVD player issue.

Florida operates under a pure comparative negligence standard. This means that whatever amount a party was negligent, his/her/its recovery will be limited by that amount. For example, if you are suing another driver and your share of fault was deemed to be 30% negligent, then your damages will be decreased by 30%. By contrast, you’d receive 70% of your total monetary recovery. In this way, the doctrine of comparative negligence apportions negligence among the various parties involved in the accident.

Under state law, you can establish negligence if the following three conditions are met:

  1. The party that injured you had a duty not to injure you but did not meet that duty
  2.  The individual’s duty was related to your injury
  3. The individual’s failure to meet his or her duty is what caused your injury or damages.

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