Madorin, Snyder LLP has rebranded and is now Bennett Grant LLP. We are a full service law firm based in Kitchener and Listowel serving clients throughout Ontario.

AUTONOMOUS VEHICLES
THE FUTURE OF MUNICIPAL ROAD LIABILITY

Driverless Vehicle Symposium – September 13, 2019

James H. Bennett

Partner, Municipal Defence Lawyer

1.  Autonmous Vehicles (AVs) are Coming...and Soon

1. The changes will be significant and the equivalent when our roads were adapted from the horse and buggy to automobiles;
2. The reality of AVs will be here before necessary changes to legislation, the Ontario Traffic Manual (OTM), and public education have been put into place; and
3. There is a need now for the municipalities and the Ontario Good Roads Association to be proactive and lobby the Provincial government to ensure proper legislation (MMS), licensing, and insurance requirements are put into place.
4. The technology of vehicles are here now, but the road infrastructure and Municipal policies and legislation are not in place.

2.  Not All Risk: The Benefits for Road Authorities

1. Lower energy demand and other environmental benefits;
2. Better use of infrastructure (ie. reduced congestion, more efficient travel, etc.);
3. Fewer and less severe accidents (over 90% of accidents are caused by human error);
4. Better use of 'driver' time (instead of driving, people could work);
5. Mobility for all, including those who are unable to drive; and
6. Automatic reporting of road problems (ie. a pothole detected by a vehicle sensor is automatically sent to the road authority, notifying the agency of the need for repair);
7. Huge savings long term, but in the short term I predict a lot of litigation given the publics inability to accept change,

3.  The Risks and Challenges for Road Authorities

1. Without a driver, responsibility for safe operation must rest with an operator competent to discharge that responsibility. Liability becomes complicated:
   1. Prototype AVs: liability for owner and operator is the manufacturer (easy);
   2. Semi-autonomy: As long as a driver with some ability to assume or resume control of the vehicle is present, there would seem to be a continuing basis for driver negligence and liability as they presently exist. This still depends on driver control and how you regulate situations where you have both AVs and driver operated motor vehicles on the road at the same time;
   3. Future Reality: AVs are leased or sold, either to companies, such as delivery contractors or taxi firms, or to individuals (companies or individuals then become the operators of the vehicles). Without a driver, responsibility for safe operation must rest with an operator competent to discharge that responsibility;
   4. Road authority will face potential threats for road design, maintenance, etc.; and
   5. What is still unclear are ethical questions arising from software or what is really artificial intelligence making decisions in urgent situations involving pedestrians, passengers or other vehicles. It will also be difficult to understand how separate vehicles are going to communicate with each other. Merging AVs with human drivers and regulating human drivers will still be a major challenge.

2. The biggest problem will be that there will never be a situation where all vehicles are autonomous – AVs will always have to be interoperable with other manually-controlled vehicles and non-motorised road users, such as pedestrians, cyclists, and animals;
3. People do not trust technology, and Judges are people.
4. Although some ‘tech-friendly’ road authorities may introduce changes to road layouts, signage, and other infrastructure to accommodate AVs, it is unrealistic to expect all road authorities to lower tier class roads to bring their infrastructure up to that standard before AVs are widespread.;
5. There is now a move to create designated roadways for AVs, but how can you restrict their use to solely AVs, i.e. the 401 etc.
6. During winter, road markings may be obscured, creating problems for AVs, as can the cameras and sensors on the AV itself. Canada is not Arizona;
7. Unexpected road closures or emergency repairs could confuse AVs;
8. Risk of hacking or terrorist/criminal attacks; and
9. Guaranteed that municipalities will be targets and named as Defendants in MVA litigation on the same basis as current road liability cases and based on joint and several liability principles. You can still drive in this Province with minimum insurance limits of $200,000.00, even with $1,000,000.00 policy limits, if people are seriously injured the Plaintiffs will look to Municipalities as deep pocket targets and will pursue claims for issues involving AVs on municipal roads.

4.  Current Sources of Liability for Road Authorities

1. Municipal Act, 2001, S.O. 2001, c. 25, section 44:
   • 44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge;
2. Minimum Maintenance Standards (O. Reg. 239/02) which address patrolling (routine and winter); Weather-monitoring; Snow accumulation limits; Ice formation; Potholes; Shoulder drop-offs; Cracks; Debris; Luminaries; Signs; Traffic controls; Bridge deck spalls; Roadway surface discontinuities; etc.; and
3. Four Part Test for Liability as established in Court of Appeal cases following Fordham ats Dutton/Dunwich.
4. The Legislation, MMS and Case law is going to have to adapt to include standards and recognize duties of care that will involve design and maintenance of Roadways for AVs.

5.  Liability Concerns and Future Realities for Autonomous Vehicles

1. Design and Construction:
   1. Major changes to existing infrastructure will be required and future infrastructure will need to be designed with AV and conventional vehicles in mind;

2. Inspection and Maintenance
   1. Who will be responsible for ensuring road signs are understood by AVs?;
   2. Road markings are used by many AVs and their obstruction can cause significant problems;

3. Other Practical Concerns
   1. Who is responsible for accurate mapping and what happens when roads are re-aligned?;
   2. If there is a driver, s/he will be primarily responsible for the vehicle (and maintenance);

4. Product Liability Claims (and Crossclaims)
   1. The Highway Traffic Act makes Owners liable for the negligence of drivers (significant for test-driving manufacturers);
   2. Manufacturers of vehicles can be found liable for manufacturing and design defects, misrepresentation, and failing to warn consumers of the risks associated with the reasonably foreseeable use of their products;
   3. The Sale of Goods Act implies warranties and conditions with respect to the merchantability and fitness of products, including vehicles, into all contracts of sale. Vehicle purchasers can sue (Crossclaim) retailers of motor vehicles in contract and in tort; and
   4. Potential for recovery from providers of software, maps, GPS, etc.

6.  Risk-Management: What can the Road Authority do?

1. Designated AV routes and establish enforcement procedures;
2. Require better Black Boxes (Vehicle Data Recorders) to enforce rules when AVs can be used;
3. Liability for changes to MMS and OTM to provide consistent standards;
4. Consistent planning and implementation between road authorities and OGRA; and
5. Require specialized licensing, insurance, and Indemnity Agreements. There should be special training, higher minimum limits for insurance and potentially indemnity agreements between users of designated roadways, although this will be difficult to implement.

7.  Liability Scenarios

1. A collision is caused by an AV departing from a marked lane during a winter storms and leaving the travelled surface of the highway. The AV navigates by reading road markings and the markings were obscured by a recent snow event. The road authority was monitoring the snow event and appropriately deployed its resources in accordance with the MMS;
2. An AV enters into a signal-controlled intersection and causes an angle collision. The AV uses cameras to read traffic control signals. At the time of the accident, the traffic control signals were not operating properly. The road authority had been inspecting per the MMS;
   • Query: There may be a different standard that the reasonable ordinary driver standard, potentially if the roadway is a designated route for AVs.
3. An AV enters into an intersection controlled by Stop Signs causing an angle collision. The AV uses cameras to read road signs. At the time of the collision, the Stop Sign was obscured by snow from a recent snow event. The road authority had been inspecting road signs as required under the MMS. Is the road authority liable?
   • Query: Whether more maintenance will now be required for municipalities particularly in winter months to ensure that AVs pick up visual information from road signs. Alternately, will there be significant costs for electronic sensors to be installed in all signs so that visual recognition for AVs does not become that important.

8.  Conclusion

1. AVs are here to say and we must adapt as Municipalities having jurisdiction over our streets, roads and highways. The major benefit in cost savings will definitely occur in the long run, but there will be short term problems resulting in an increase in litigation that will have to be managed.

James Bennett is a civil litigator partner at Madorin, Snyder LLP whose practice includes the defence of municipal liability claims. Madorin, Snyder LLP is a full service law firm servicing Kitchener, Waterloo, Cambridge, Guelph and the surrounding area.

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.