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Legal Issues and Emerging Technologies (2022)

Chapter: I. LIABILITY AND RISK MANAGEMENT

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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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Suggested Citation:"I. LIABILITY AND RISK MANAGEMENT." National Academies of Sciences, Engineering, and Medicine. 2022. Legal Issues and Emerging Technologies. Washington, DC: The National Academies Press. doi: 10.17226/26786.
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TCRP LRD 59 5 nologies will have on the mobility ecosystem and be aware of the different avenues of liability that the technology presents. There are many emerging technologies that transit agencies may be considering. These range from vehicle technologies, such as AVs and CVs and the infrastructure needed to support them, to Mobility-as-a-Service (MaaS), shared used mobility, and innovative solutions for systems management and optimi- zation, such as electronic fare payment technology, real-time information apps, route optimization, and dispatch and plan- ning software. There is no one-size-fits-all approach to address- ing liability and regulatory issues associated with emerging technology.1 A. Tort Liability 1. Public Tort Claims Acts In the United States, a person injured by another’s wrongful act may file a tort lawsuit to recover money from the defendant.2 Traditionally, with a few significant exceptions, tort law is a matter of state law, not federal law. By forcing people who wrongfully injure others to pay the people they injure, tort law serves two primary functions: (i) to compensate those who are injured for their injuries; and (ii) to deter people from acting in ways that may injure others.3 Although public servants and officials do occasionally injure others, until the mid-20th cen- tury, the common law doctrine of “sovereign immunity” and the Eleventh Amendment to the U.S. Constitution barred private citizens from suing state government without its consent.4 Many states have it in their constitutions that the state cannot be sued without its consent.5 In most states, public tort claims acts establish the liability of state and local governments for torts, the procedures for filing a claim, and the limitations on monetary damages.6 The Restate- ment (Second) of Torts § 895B provides: 1 U.S. Chamber, Inst. for Legal Reform, Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Tech- nologies (2017), https://instituteforlegalreform.com/research/torts-of- the-future-addressing-the-liability-and-regulatory-implications-of- emerging-technologies/. 2 Kevin M. Lewis, Introduction to Tort Law, Cong. Research Serv., IF11291 (Aug. 13, 2019), https://crsreports.congress.gov/ product/pdf/IF/IF11291. Alberto Galasso & Hong Luo, Tort Reform and Innovation, 60 J.L. & Econ. 385, 386 (2017). See also John C. P. Goldberg, Twentieth-Century Tort Theory, 91 Geo. L.J. 513, 514–83 (2003) (discussing various scholarly accounts of the purposes of tort law). 3 Tort, Black’s Law Dictionary (10th ed. 2014) (defining “tort” as “a civil wrong, other than breach of contract, for which a remedy may be obtained, usu[ally] in the form of [monetary] damages”). 4 U.S. Const. Amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”). 5 Restatement (Second) of Torts § 895B (1979). See e.g., Ark. Const. Art. 5, § 20 (Constitutional provision against suit). 6 Id. Section VII then discusses transportation equity and Title VI of the Civil Rights Act of 1964 and environmental jus- tice. Title VI requires nondiscrimination in federally assisted programs by emphasizing the need to identify and address any disproportionate effects of federal programs, policies, and activ- ities. Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, ethnicity, income, national origin, or educational level with respect to the devel- opment, implementation and enforcement of environmental laws, regulations, and policies. Federally funded technology projects will need to consider Title IV and environmental jus- tice requirements. While emerging technologies generally will not present labor and employment issues for government agencies, Section VIII discusses the possible implications under federal labor protec- tions. This section also explains worker classification issues that have become prevalent with ridesourcing services, commonly referred to as transportation network companies, such as Uber and Lyft. Section IX addresses concerns related to emergency man- agement and activities transit systems take to prepare for a plan to reduce the impact of emergencies, including infectious dis- ease outbreaks (IDOs) or public health emergencies (PHEs), natural disasters (hurricane, tornado, landslide, flood, tsunami, or volcano), drought, fires, terrorism, nuclear explosions. Emer- gency preparedness impacts nearly every aspect of a transporta- tion agency. Section X examines regulatory issues that may arise when new and emerging technologies may not fit neatly within the existing regulatory framework, existing regulations may hinder deployment of new technologies, and outdated regulatory frameworks may not help achieve policy goals. Finally, Section XI discusses procurement issues that may arise with technologies. Government procurement is the pro- curement of goods, services, and construction on behalf of a public authority, such as a government transportation agency. Challenges are associated with nearly every emerging tech- nology acquisition, including adhering to strict and inflexible procurement rules, using alternatives to competitive bidding (regulatory sandboxes, public-private partnerships, or pilot pro- grams), and navigating sole source contracts. I. LIABILITY AND RISK MANAGEMENT This section discusses issues of liability that arise from transit agencies’ use of new technologies, including insurance require- ments, limiting liability, and indemnification through contracts, using examples of lessons learned from various technologies, including micromobility, automated and CVs, positive train control, and transit signal priority. This topic area involves the threat of the transportation agency having to bear the conse- quences of damages for breaching standards due to operations, a product, an act, or neglect. As emerging technologies in trans- portation advance, transportation attorneys, risk managers, and insurers will need to evaluate the impact these emerging tech-

6 TCRP LRD 59 Under the doctrine of respondeat superior, an employer may be liable for torts committed by its employees while acting in the scope of their employment.10 Employment classification law dis- tinguishes between employees and independent contractors for liability purposes under respondeat superior.11 An employee’s use of an electronic device supplied by his employer may impli- cate the employer under this doctrine. The issue of whether the employer provided the electronic device in use at the time of the accident may not be dispositive. The most notable risk of providing employees with or allow ing them to use telematics devices is distracted driv- ing. Employer policies on employees’ use of cell phone, global position ing system (GPS), and other telematics devices may help avoid liability for personal injury. The best policies will “include clear guidelines and be crafted to cover use of other telematics devices as well.”12 Transit agencies that provide em- ployee drivers with sophisticated equipment “probably need to go further.”13 B. Regulatory Concerns New technologies and modes of transportation raise ques- tions regarding responsibility for injuries and damages, which necessarily raise questions about whether regulations are neces- sary. Regulations play an important role in mitigating risk and apportioning liability. For example, state and local governments 10 Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 392, 102 S. Ct. 3141, 3151 (1982) (citations removed) (“The doctrine of respondeat superior, as traditionally conceived and as understood by the District Court [], enables the imposition of liability on a principal for the tortious acts of his agent and, in the more common case, on the master for the wrongful acts of his servant.”); Restatement (Second) of Agency § 219 (1958) (Restatement) (“A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.”). 11 Restatement (Second) of Agency § 220 (“(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control. ¶ (2) In determining whether one acting for another is a servant or an independent contrac- tor, the following matters of fact, among others, are considered: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business.”). 12 Paul K. Hentzen, The Trouble with Telematics: The Uneasy Marriage of Wireless Technology and Automobiles, 69 UMKC L.Rev. 845, 871 (2001). 13 Jay Barry Harris and Diane Bernoff Sher, The Risks: Providing Drivers with Telematic Equipment, 44 No. 11 DRI for Def. 53 (Nov. 2002). (1) A State and its governmental agencies are not subject to suit with- out the consent of the State. (2) Except to the extent that a State declines to give consent to tort liability, it and its governmental agencies are subject to the liability. (3) Even when a State is subject to tort liability, it and its govern- mental agencies are immune to the liability for acts and omissions constituting (a) the exercise of a judicial or legislative function, or (b) the exercise of an administrative function involving the deter- mination of fundamental governmental policy. (4) Consent to suit and repudiation of general tort immunity do not establish liability for an act or omission that is otherwise privileged or is not tortious. State tort claims acts may be characterized as either “open- ended,” meaning a statutory scheme that generally provides for liability subject to stated exceptions, or “closed-ended,” gener- ally prescribing immunity subject to exceptions for liability.7 These laws serve two primary purposes: (i) waiving sovereign immunity for tort claims, subject to limitations on damages, and (ii) providing limitations on tort damages for entities that do not otherwise have immunity for torts under state law. Many states have two systems for governmental tort immunity: one for the state and another for governmental subdivisions created by the state, such as cities, towns, and transportation districts created by the state to fulfill their obligations. For example, under the Texas Tort Claims Act, liability of the state government is capped at no more than $250,000 per person and $500,000 per occurrence for bodily injury, and $100,000 per occurrence for damaged property, while liability of a unit of local government is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily in- jury or death and $100,000 for each single occurrence for injury to or destruction of property.8 State governmental immunity has become the exception, not the rule. State tort claims statutes generally prohibit a state agency or local government from pay- ing damages above the cap, even if the entity admits liability and the actual damages exceed the statutory cap. Statutes also limit punitive damages, pre- and post-judgment interest, and costs and attorneys’ fees. 2. Liability for Drivers and Employees Under certain circumstances, a defendant may be liable for negligence committed by a third party. A transit agency, as an employer, may be liable for the actions of its employees when the employee is acting within the scope of his or her employment.9 For torts an employee commits outside the scope of employ- ment, an employer may be liable if: (a) the employer intended the consequences, or (b) the employer was negligent or reckless, or (c) the conduct violated a nondelegable duty of the employer. 7 Anthony Z. Roisman, § 66:40 Defeating sovereign or governmen- tal immunity—State tort claims acts, 6 Litigating Tort Cases (West, Aug. 2020), citing Dowers Farms, Inc. v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980). 8 See Tex. Civ. Prac. & Rem. Code §§ 101.021–101.050. 9 Restatement (Second) of Agency, § 219.

TCRP LRD 59 7 cies to not exclude coverage for commercial use, and 48 states changed their laws to allow for additional umbrella coverage. Lawmakers throughout the U.S. enacted legislation to address what insurance coverage is required to operate legally from the time the app is turned on to when it is turned off.15 Oregon is the only state that does not have a statewide insurance law for TNCs. As TNCs have shown, new technologies and services may not fit neatly into insurers, current risk-pooling models, rais- ing numerous insurance-related questions. Insurance issues will also need to be addressed for AVs. Currently, under the “user- liability model” vehicle operators are required to have insur- ance. The traditional approach to insurance may prove unwork- able. It may be necessary to extend insurance to the maker of the vehicle or the computer or automated system that is controlling vehicle. Insurance will need to evolve, possibly to include third- party liability insurance and product liability coverage. As a recent study suggests, in the next 10-15 years, there will emerge four states of mobility with the advent of autonomous vehicles and shifts in mobility references:16 • Future State 1: Personally owned driver-driven vehicles • Future State 2: Shared driver-driven vehicles • Future State 3: Personally owned autonomous vehicles • Future State 4: Fleets of autonomous shared vehicles run by mobility management companies. Principles of tort law can provide and may be useful in de- termining how liability will be determined for transportation- related injuries as technology advances quickly in the years to come. Questions arising that may be addressed through regula- 15 Many of state laws followed a basic framework developed in a coordinated with TNCs, personal auto insurers, and insurance trade associations (the TNC Model Bill). The TNC Model Bill includes express permission of personal auto policies to exclude coverage for TNC-related driving, mandatory primary liability coverage during Period 1 of at least $50,000 bodily injury per person, $100,000 bodily injury per incident and $25,000 property damage depending on state law, and mandatory primary liability coverage during Period 2 of at least $1 million. Coverage may be maintained by the TNC, the TNC driver or a combination of the two. TNC coverage is not contingent upon a denial of claim payment from the person’s personal auto policy (PAP). Under the TNC Model Bill, personal auto insurers are granted a statutory right of contribution against TNCs for erroneously paid claims. The TNC Model Bill does not require coverage for medical pay- ments, personal injury protection, collision and comprehensive (other than collision), as well as uninsured motorist (UM) and underinsured motorist (UIM) coverage. See also Nat’l Conf. of Insurance Legis. (NCOIL), Model Act to Regulate Insurance Requirements for Transporta- tion Network Companies and Transportation Network Driver (2015), http://ncoil.org/wp-content/uploads/2016/04/07232015TNCModel Act.pdf (The NCOIL model adopted the TNC Model Bill language and added two modifications: (1) adding language requiring disclosure if there is a lien on the vehicle to be used for TNC services and (2) adding to the section on rating agencies used to determine which surplus lines insurers are eligible to provide coverage for TNCs.). 16 Scott Corwin and Derek M. Pankratz, Forces of change: The Future of Mobility (Deloitte Insights, 2017), https://www2. deloitte.com/us/en/insights/focus/future-of-mobility/overview.html. have used Transportation Network Companies (TNC) legisla- tion to either shift responsibility to companies to ensure the fitness of drivers and vehicles, or establish universal standards for the fitness of drivers and inspection of vehicles. State laws have also assured there is adequate compensation available for injured parties through novel insurance requirements. To illus- trate this, take the example of TNCs. Many states now set forth minimum requirements for TNC vehicles while they are providing TNC services, but that was not always the case. When TNCs first emerged, concerns quickly emerged about their insurance coverage. TNC drivers face heightened risks due to: additional miles driven; heightened geographical hazards in urban locations; high traffic locations; unfamiliar roads; driver distraction caused by TNC apps; addi- tional passengers in the vehicle; and driver actions to pick-up passengers within a time frame. These activities may result in more injuries and more insurance claims. Generally, the stan- dard personal auto policy will not provide coverage for a vehicle while it is being used to provide service for a TNC.14 A standard auto policy stops providing coverage from the moment a driver logs into a TNC app to the moment the customer has exited the car and the transaction is closed. The standard personal auto policy contains a livery exclusion that excludes coverage for injuries/damages sustained while carrying passengers for hire. Livery exclusions were written because transporting passengers for a fee adds exposure and creates more risk than the insur- ance company contemplated for items such as additional miles driven, unfamiliar roads, and increasing the number of people in the car who could be injured. There are three distinct periods where a personal auto policy offers no coverage to the TNC drivers: • Period 1: When the TNC driver logs into the TNC applica- tion but is not matched with a passenger; • Period 2: When the TNC driver has made and accepted a match with a prospective passenger but that passenger is not yet physically in the vehicle; and • Period 3: When the TNC driver has picked up the passenger and the passenger is occupying the TNC driver’s vehicle. In other words, from the time a TNC driver logged on to the app until they logged off, there was a gap in coverage. Insurance companies addressed the insurance coverage gap by providing a specific TNC endorsement and for personal motor vehicle poli- 14 The CIPR of the National Association of Insurance Commission- ers explains: “Ride-sharing is different, however, than taking a tradi- tional taxi or limousine. Taxis and limousines are typically licensed by the state and/or local transportation authority. The vehicles are required to be inspected and drivers must be properly licensed. In addition, taxi operators are required to have commercial insurance that protects a passenger and third parties (i.e., pedestrians or other drivers) in the event of an accident. TNCs may not be subject to the same requirements that apply to taxis and limousines. Additionally, commercial auto insur- ance for a TNC is typically more expensive than personal auto insurance because it presents more risk and therefore may be cost prohibitive for individuals only driving on a part-time schedule.” CIPR, Commercial Ride-Sharing (Mar. 4, 2020), https://content.naic.org/cipr_topics/ topic_commercial_ride_sharing.htm.

8 TCRP LRD 59 (NACTO), people took 136 million trips on shared bikes and scooters in 2019, which is a 60% increase from 2018.19 Some “speculate that micromobility is only at its beginning of the exponential innovation and growth curve.”20 However, the COVID-19 pandemic may impact the future of micromobility.21 Some cities offer official bike share programs, but the ser- vices are usually offered by a private company.22 Publicly-shared bike and scooter networks like Bird, Lime, Lyft, and Uber depend on using the public right-of-way, including city streets, as well as sidewalks and parking spaces. The growth of shared micro mobility systems has posed challenges for transportation planning and policy. While these devices may decrease traffic congestion and increase public transit use, an increase in inju- ries and public complaints about users riding or parking the de- vices on sidewalks has left municipal regulators struggling with how to protect public safety and mitigate risk without stifling innovation.23 1.  Defining Micromobility to Regulate It In addition to scooters and bikes, micromobility includes powered skateboards, skates, and self-balancing devices (some- times called hoverboards or balance wheels).24 According to SAE International, powered micromobility devices share three common characteristics: (i) they are fully or partially-powered; (ii) they are low speed, with a top speed of 30 mph (48 km/h); and (iii) they are small, with a maximum curb weight of 500 lb. (227 kg), typically weighing less than 100 pounds and fitting within a standard bike lane.25 Micromobility does not include solely human-powered vehicles. Typically, powered micromobility vehicles are not consid- ered motor vehicles subject to the regulatory requirements of the 19 Nat’l Ass’n of City Transp. Officials (NACTO), Shared Micromobility in the U.S.: 2019 (Dec. 31, 2019), https://nacto.org/ shared-micromobility-2019/. 20 Annie Chang, et al., Trend or Fad? Deciphering the Enablers of Micromobility in the U.S., SAE Int’l (Jul. 2019), https://www.sae.org/ binaries/content/assets/cm/content/topics/micromobility/sae- micromobility-trend-or-fad-report.pdf. 21 McKinsey & Co., The Future of Micromobility: Ridership and Revenue After a Crisis (Jul. 16, 2020), https://www.mckinsey. com/industries/automotive-and-assembly/our-insights/the-future-of- micromobility-ridership-and-revenue-after-a-crisis#. 22 See, e.g., Citi Bike, https://www.citibikenyc.com/ (official bike share program of New York City); Divvy, https://www.divvybikes.com/ (official bike share program of Chicago, IL); Houston BCycle, https:// www.houstonbcycle.com/ (official bike share program of Houston, TX). 23 Nat’l Ass’n of City Transp. Officials, Guidelines for Reg- ulating Shared Micromobility (2d ed. 2019) (guidance outlining best practices for cities and public entities regulating and managing shared micromobility services on their streets). 24 SAE Int’l, SAE J3194™ Taxonomy & Classification of Powered Micromobility Vehicles, available at https://www.sae.org/binaries/content/ assets/cm/content/topics/micromobility/sae-j3194-summary---2019-11. pdf. 25 SAE Int’l, J3194 Taxonomy & Classification of Powered Micro- mobility Vehicles. tions regarding who is responsible for damages and under what circumstances include: • Should companies be held vicariously liable for the acts of their drivers? • Are the characteristics of the employment relationship be- tween driver and company sufficient to impute liability to the Company? • Should companies be held liable even if drivers are consid- ered independent contractors? • Should companies have a nondelegable duty to ensure public safety? • Should companies face liability for their own acts of negli- gence and for products they supply? • Should enterprise liability theory incorporating principles of strict and vicarious liability apply to hold individual en- tities jointly liable for transportation-related injuries due to advanced technology? • Should products liability theories including, negligence, strict liability, misrepresentation and breach of warranty apply to hold an entity liable for transportation-related in- juries due to advanced technology? C. Discovery Issues and Records Retention for Litigation Common law principles impose obligations to preserve data upon notice of a pending claim. Once a potential claim involving a vehicle that employs telematics is known, a transit agency must impose a “litigation hold” in order to preserve data potentially relevant to the claim. There is no duty to “preserve every shred of paper, every e-mail or electronic document, and every backup tape.”17 However, “anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.”18 As vehicle manu facturers rely more on computer operations, this will nec- essarily result in an increase in discoverable information. Aside from the sheer volume of discovery, there may also be an issue relating to proprietary code. D. Micromobility Micromobility devices, including powered standing scooters (e-scooters) and electric bicycles, among other nimble motor- ized devices, have gained popularity in recent years due ad- vances in vehicle and communication technologies. Shared micromobility allows individuals to rent a bike or scooter on a short-term basis by using a mobile application (app). Through the app, a user can locate a bike or scooter, unlock the device, and pay for the trip. When users are finished, they leave the bike or scooter in a designated docking station or, if the device is “dockless,” in a designated area. Micromobility is changing how people travel. According to the National Association of City Transportation Officials 17 Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003). 18 Id.

TCRP LRD 59 9 that uses nearly identical defining language to differentiate be- tween models based on speed capabilities.31 2.  State and Local Regulations States typically grant counties and municipalities the authority to regulate the use of sidewalks and streets in the pub- lic right-of-way (ROW) within their jurisdiction.32 Many local governments use this authority to regulate shared micro mobility systems, which depend on being able to use public streets and sidewalks, including for the installation of docks and charging stations and use of public parking spaces.33 Some states give ex- plicit authority to local governments to regulate micromobility operations, shared systems, or both.34 For example, New York recently made it legal for e-scooters to operate in the state, how- ever, it reserves the right for cities to regulate, or ban, e-scooters and shared e-scooters systems: The governing body of any city, town or village may, by local law, ordi- nance, order, rule or regulation, authorize and regulate shared electric scooter systems within such city, town or village. No such shared sys- tems shall operate within a city, town or village except as authorized by such local law, ordinance, order, rule or regulation. 35 Typically, cities will require any shared micromobility com- pany that wants to use the public ROW to obtain a license from 31 See Nat’l Conference of State Legislatures, State Electric Bicycle Laws: A Legislative Primer (Aug. 25, 2020), https://www.ncsl. org/research/transportation/state-electric-bicycle-laws-a-legislative- primer.aspx. The states are Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Louisiana, Maine, Maryland, Michigan, New Hampshire, New York, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin, and Wyoming. 32 See, e.g., Cal. Veh. Code, § 21960 (“The Department of Trans- portation and local authorities, by order, ordinance, or resolution, with respect to freeways, expressways, or designated portions thereof under their respective jurisdictions, to which vehicle access is completely or partially controlled, may prohibit or restrict the use of the freeways, expressways, or any portion thereof by pedestrians, bicycles or other nonmotorized traffic or by any person operating a motor-driven cycle, motorized bicycle, motorized scooter, or electrically motorized board.”); Tex. Transp. Code § 551.352 (“A county or municipality may prohibit the operation of a motor-assisted scooter on a street, highway, or side- walk if the governing body of the county or municipality determines that the prohibition is necessary in the interest of safety.”); Va. Code §46.2-904 (“The governing body of any county, city, or town may by ordinance prohibit the use of roller skates, skateboards, electric per- sonal delivery devices and/or the riding of bicycles, electric personal assistive mobility devices, motorized skateboards or foot-scooters, motor-driven cycles or electric power-assisted bicycles on designated sidewalks or crosswalks, including those of any church, school, recre- ational facility, or any business property open to the public where such activity is prohibited.”). 33 See, e.g.¸ City of Galveston, Tex. Code of Ordinances Sec. 34-230 (requiring a permit to operate an “electronic share system,” which includes app-based electric bikes and scooter shares, in the city or make such vehicles available for use on the public rights-of-way (public streets and sidewalks). 34 N.Y. Veh. & Traf. § 1281(2) (authorizing localities to create regu- lations, including but not limited to setting a maximum speed that is lower than the statewide requirement, setting helmet and clothing requirements for riding, and opting out entirely of allowing e-scooters). 35 N.Y. Veh. & Traf. § 1282(10)(a). National Highway Traffic Safety Administration  (NHTSA).26 The definition of a “motor vehicle” provided in 49 U.S.C. 30102 is a “vehicle driven or drawn by mechanical power and manu- factured primarily for use on public streets, roads, and high- ways, but does not include a vehicle operated only on a rail line.” A 2002 federal law, HB 727, amended the Consumer Product Safety Commission to create a special category of vehicles called “low-speed electric bicycles,” defined as a: [T]wo- or three-wheeled vehicle with fully operable pedals and elec- tric motor of less than 750 watts (1 HP), whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 mph. 27 The federal law permits e-bikes to be powered by motor alone (a “throttle-assist” e-bike), or by a combination of motor and human power (a “pedal-assist” e-bike). In a draft notice of interpretation addressing low-speed two- and three-wheeled vehicles, NHTSA articulated a method to distinguish those vehicles that fall under the statutory definition of motor vehicle from other vehicles.28 In that notice, NHTSA stated: Consistent with the Congressional definition of low-speed electric bicycle, we have tentatively concluded that if a two- or three-wheeled vehicle were to have a maximum speed capability of less than 20 mph (32 km/h), regardless of on-road capabilities, it would not be a motor vehicle, except in very limited circumstances.29 E-bikes that meet this definition are regulated by the U.S. Consumer Product Safety Commission (CPSC) and must meet bicycle product standards and safety.30 The federal law only covers product and safety standards. State traffic laws and ve- hicle codes govern the operation of e-bikes and other micro- mobility devices on streets, trails, and bikeways within the re- spective state. To regulate these different devices’ operation and equipment standards, states and localities must first differentiate among the types of available devices, and then create definitions for the devices. Of the 43 states and D.C. that define e-bikes, twenty-six states have a three-tiered e-bike classification system 26 NHTSA is authorized to issue federal motor vehicle safety stan- dards (FMVSSs) that set performance requirements for new motor vehicles and items of motor vehicle equipment. See 49 U.S.C. Chapter 301. NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture. NHTSA selects a sampling of new vehicles and equipment each year to determine their compliance with applicable FMVSSs. If NHTSA testing or examination reveals an appar- ent noncompliance, the agency may require the manufacturer to remedy the noncompliance and may initiate an enforcement proceed- ing if necessary to ensure that the manufacturer takes appropriate action. 27 Pub. L. 107-319, Dec. 4, 2002; codified at 15 U.S.C. § 2085. 28 70 FR 34810. 29 Those circumstances include instances in which the maximum speed has been lowered through use of a speed-governing device. 30 See U.S. Consumer Product Safety Commission, Powered Scooters (Apr. 4, 2007), https://www.cpsc.gov/Regulations-Laws-- Standards/Voluntary-Standards/Topics/Powered-Scooters.

10 TCRP LRD 59 company, a pedestrian, a vehicle driver, or someone else was at fault for injuries sustained. Cities are generally responsible for maintaining roadways against defects, such as potholes. If a city failed to remedy a known issue, then the city may potentially be liable. As a result of the arbitration requirements in nearly all micro mobility rental agreements, there are very few lawsuits from injuries in connection with e-scooter and bike rentals.41 In Florida, a woman who collided with an automobile while riding an e-scooter is suing the operator in state court for negligence per se for allegedly instructing users to not ride their scooters on sidewalks, despite a city ordinance authorizing scooter use only on sidewalks.42 The suit claims that Fort Lauderdale Code of Ordinance number 27-265 imposes a duty on the e-scooter operator and other scooter companies to “inform users how to safely and legally ride” the scooters. The scooter rider is also suing the automobile driver for negligence. In Los Angeles, a group of pedestrians and riders filed a putative class action against e-scooter operators Bird and Lime, along with the e-scooter manufacturers Segway and Xiaomi, in Los Angeles County Superior Court.43 The plaintiffs include pedestrians who tripped over e-scooters left on sidewalks or 41 The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., “declares that a written agreement to arbitrate in any contract involving interstate commerce . . . ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any con- tract.’” Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 474, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989) (quot- ing 9 U.S.C. § 2). “In applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA], due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Id. at 475-76 (internal cita- tion omitted). Although “the FAA pre-empts state laws which require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration, . . . it does not follow that the FAA pre- vents the enforcement of agreements to arbitrate under different rules than those set forth in the [FAA] itself.” Id. at 478-79. Where “the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the [FAA] would otherwise permit it to go forward.” Id. at 479. In Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 202 L. Ed. 2d 480 (2019), the Supreme Court held that “[w]hen the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.” Courts have compelled arbitration in cases against e-scooter companies. See, e.g., Kohutek v. Bird Rides, No. 1:19-CV-833-RP, 2020 U.S. Dist. LEXIS 130397, at *4 (W.D. Tex. Jan. 30, 2020 (granting Bird scooter’s motion to dismiss and compelling arbitration of Plaintiff ’s claims relating to inju- ries she sustained while using a Bird scooter); Phillips v. Neutron Hold- ings, Inc., No. 3:18-CV-3382-S, 2019 U.S. Dist. LEXIS 171313, at *16 (N.D. Tex. Oct. 2, 2019) (“Any challenges to the enforceability or scope of the Arbitration Provision must be decided by the arbitrator.”). 42 Jordan v. Neutron Holdings d/b/a Lime et al., case number CACE 19-002789 (filed Feb. 2019, 17th Judicial Circuit Court of the State of Florida). 43 Borgia et al. v. Bird Rides, Inc. et al., case number 18STCV01416 (filed Oct. 2018, Los Angeles Cty. Sup. Ct.); the related federal case is Borgia v. Bird Rides, Inc., 2019 US Dist LEXIS 148698 [CD Cal Aug. 30, 2019, No. CV 18-9685-DMG (FFMx)]. the city or an administrative permit if it meets the regulatory requirements. An alternate approach is to use a pilot program to gather information before adopting final regulations. For ex- ample, in August 2020, following the passage of the state law, New York City passed a law creating a pilot program for shared e-scooters.36 Through contracts, pilot programs, or regulatory ordinances, municipalities can help to ensure safe and fair operation within city limits and mitigate risk. 3.  Risks of Micromobility These devices pose different challenges for regulators, but the public safety issues are largely the same. Researchers at the University of California, San Francisco, found that injuries and hospital admissions related to e-scooters in the United States nearly doubled between 2017 and 2018.37 The observa- tional study analyzed U.S. government data on nonfatal injuries treated in emergency rooms. Common causes of injuries from scooters and bikes include collisions with a pedestrian, bicyclist, car, or another scooter; swerving, stopping, or jumping off the scooter to avoid a collision; riders being “doored” by a vehicle; riders falling off the device due to road hazards, such as potholes or uneven pavement; and riders falling off the vehicle due to defective or malfunctioning devices. An October 2020 study from the Insurance Institute for Highway Safety found that e-scooter riders suffered injuries more frequently per mile traveled than bicyclists, but bicyclists were three times as likely as scooter riders to be hit by motor vehicles.38 A separate IIHS study also released in October 2020 found that e-scooter riders were twice as likely as bicyclists to be injured by a pothole or crack in the pavement or other infra- structure like a signpost or curb.39 Like other forms of shared mobility, e-scooter ridership plum- meted during the first months of the COVID-19 pandemic. How- ever, some believe it is likely to increase as people seek alternatives to other forms of public transit that place riders in close proximity to each other, such as bus and train travel.40 E-scooters also could pose an increased safety risk to pedestrians. 4.  Liability of Cities for Micromobility Injuries The duties and responsibilities of the various parties are not at all clear. Legally, it will depend on whether the rider, the rental 36 N.Y.C. L.L. 74 of 2020 (eff. Jul. 26, 2020; Int. No. 1266-2018). 37 NK Namiri, et al., Electric Scooter Injuries and Hospital Admis- sions in the United States, 2014-2018. JAMA Surg. 2020; doi:10.1001/ jamasurg.2019.5423. 38 Ins. Inst. for Highway Safety (IIHS), Severity of e-Scooter Rider Injuries Associated with Trip Characteristics (Oct. 2020), https:// www.iihs.org/api/datastoredocument/bibliography/2216. 39 Id. 40 L. Lazo, Bike-share and e-Scooter Companies, Hit Hard by the Pandemic, May Come Back Stronger, Wash. Post, May 16, 2020, https:// www.washingtonpost.com/local/trafficandcommuting/why-bike-and- e-scooter-companieshit-hard-by-the-pandemic-may-come-back- stronger/2020/05/16/076e2900-95d5-11ea-91d7-cf4423d47683_story. html.

TCRP LRD 59 11 Micromobility rental companies deal with the liability issue by requiring customers to sign an agreement that limits its liability. To rent most scooters and bikes, the rider must sign a rental agreement assuming the risk of riding the vehicle, waiv- ing or limiting liability, and agreeing to binding arbitration that limits riders’ legal rights and remedies. The rental agreements typically require the rider to fully release, indemnify, and hold harmless the micromobility operator, the technology company that provides the app, and, to the extent permitted by law, any municipality in which the rider operates the device from liabil- ity for all claims except for those based on gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all claims. Some operators have placed a limit on their liability.49 Liability waivers generally shield only against injuries aris- ing out of ordinary negligence (the failure to act as a reasonably prudent person). In many jurisdictions, the liability waivers will not apply to gross negligence, recklessness, intentional torts, or illegal acts. This presents a higher bar for a personal injury lawsuit than ordinary negligence because it “is equivalent to the failure to exercise even a slight degree of care.”50 The Restate- ment (Second) of Torts explains that conduct is in reckless dis- regard of the safety of another if the actor: “does an act or inten- tionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.”51 Under Florida law, gross negligence is defined as “conduct so reckless or wanting in care that it constitutes a conscious dis- 49 See, e.g., Lime User Agreement § 8, (“You hereby waive any and all claims, including those in contract, tort (including negligence), stat- utory and/or any other grounds, even if any of the Released Parties have been advised of the possibility of such claims…” “The total liability of the released parties for any claims under these terms, including for any implied warranties, is limited to us$100.”). 50 Conway v. O’Brien, 312 U.S. 492, 495, 61 S. Ct. 634, 636 (1941) (Citing the accepted Vermont definition of gross negligence as: “Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omis- sion respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heed- less and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of prob- able consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure.”). 51 Restatement (Second) of Torts § 500. were injured by e-scooter riders crashing into them while walk- ing, as well as riders who say they have sustained injuries, in- cluding broken wrists and toes. A San Antonio woman is suing the city of San Antonio and scooter company Lime for an injury she sustained after a scooter she was riding hit a pothole in the street.44 To mitigate risk of dockless bikes and scooters blocking and obstructing sidewalks, cities may require that electric mobility devices be locked to racks while maintaining an unobstructed walkway.45 5.  Insurance Municipalities looking to deploy shared micromobility in their jurisdictions should pay attention to insurance policies affect ing these services. Generally, e-scooter and bike riders are not insured for injuries to persons or damages to property that they cause. While an individual’s personal/private health insur- ance will generally cover their injuries in a crash, personal auto insurance policies often exclude these devices because they de- vices do not meet the definition of an auto within the policy. Standard rental agreements for shared micromobility opera- tors do not provide insurance coverage either. Individual rental agreements range from being silent on insurance,46 to informing renters that their automotive insurance policies may not provide coverage for accidents involving or damage to the scooter.47 The types and amounts of insurance will depend on the potential types and amounts of liability exposure. Many cities, including San Francisco and Santa Monica in California, re- quire e-scooter and bike share companies operating under pilot programs or permits to carry insurance for injuries to persons and/or damages to property caused by riders.48 A general liabil- ity and premises and operations coverage may be appropriate for use of the ROW by bike or scooter users. Insurance require- ments could make micromobility cost prohibitive. 6.  Indemnity and Liability Waivers It is common for micromobility operators to have language in the rental agreement that releases the city where the scooter is operated (including its elected and appointed officials, officers, employees, agents, contractors, and volunteers) from any liability to the fullest extent permitted by law. Micromobility regulations or contracts typically require companies to indemnify the city. 44 Tina L. Galvan v. Neutron Holdings, Inc. et al., Case #2019CI15188, filed in Bexar County Court, 7/30/2019. 45 See e.g., 66 D.C. REG. 7636 (June 28, 2019) (D.C. Bill B23-0359). 46 See, e.g., Lime User Agreement (Oct. 28, 2019), www.li.me/user- agreement. 47 See, e.g., Bird Rental Agreement, Waiver of Liability and Release (July 6, 2020), §1.12, www.bird.co/agreement/. 48 See San Francisco Mun. Transp. Agency, Board of Directors, Resolution No. 180501-073, www.amlegal.com/pdffiles/sanfran/ MTARes180501-073.pdf; Santa Monica Shared Mobility Pilot Program, www.smgov.net/uploadedFiles/Departments/PCD/Transportation/ S h a r e d % 2 0 M o b i l i t y % 2 0 S e l e c t i o n % 2 0 C o m m i t t e e % 2 0 Memo_09072018_Final.pdf.

12 TCRP LRD 59 vidually owned bikes, the increased usage levels for rental bikes may call for stronger regulations. Meeting or exceeding international standards for bikes (International Standards Organization 43.150–Cycles, subsection 4210). Meeting or exceeding applicable NHTSA requirements for electric bikes (often used for people with disabilities). Requiring a minimum wheel diameter for scooters, usually ten inches in diameter. Setting minimum brake standards and requiring multiple braking systems. Requiring that scooters be equipped with a working speedometer. An ordinance may also set out a preventative maintenance schedule and require companies to submit maintenance records. 56 Despite the lack of a universal approach to addressing regu- latory issues associated with shared use micromobility, regula- tors are addressing legitimate safety and privacy issues while promoting innovation and entrepreneurship. E. Liability Issues with Particular Technologies 1. Autonomous and CVs Autonomous and connected vehicle driving technology, like other new technology, will impact personal injury liability. Because the technology is still relatively new, the legal questions associated with its use have yet to be addressed by legislation. Currently, there is no federal regulatory framework for the devel opment, testing, or deployment of connected or autono- mous vehicle technologies or automated driving systems or the related liability issues. A handful of states have laws that address AVs and CVs,57 but courts will have to decide legal issues as they arise. Crashes involving automated driving systems will present courts and personal injury attorneys with many novel legal issues regarding liability. Government policies and regulation, as well as insurance rules, may also affect the analysis of duty and liability. Principles of tort law can provide guidance and may be useful in determining how liability will be determined for connected and autonomous vehicle-related injuries. 56 Dockless Mobility Regulation, Practical Law Practice Note w-017-6569. 57 According to the National Conference of State Legislators, which maintains a database of State AV and CV laws, “Twenty-nine states— Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New York, Nevada, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Vermont, Washington and Wisconsin—and Washington D.C. have enacted legislation related to autonomous vehicles.” In addition, “Governors in Arizona, Delaware, Hawaii, Idaho, Illinois, Maine, Massachusetts, Minnesota, Ohio, Washington and Wisconsin have issued executive orders related to autonomous vehicles.” Nat’l Con- ference of State Legis., Autonomous Vehicles: Self-Driving Vehicles Enacted Legislation, Feb. 18, 2020, https://www.ncsl.org/research/ transportation/autonomous-vehicles-self-driving-vehicles-enacted- legislation.aspx. regard or indifference to the life, safety, or rights of persons ex- posed to such conduct.” Because a pedestrian is not a party to the rental agreement between the rider and micromobility operator, the pedestrian could seek damages from the operator for injuries caused by an e-scooter or bicycle. However, rental agreements typically include an indemnification clause that would limit the opera- tor’s liability. Although the rider may be legally responsible for injuries or property damage, they are unlikely to be a source for actual recovery of damages due to lack of insurance. 7.  Safety Regulations to Mitigate Risk To mitigate the risk of injury to riders and pedestrians, muni cipalities may adopt an ordinance or regulations requiring micromobility users wear helmets or visible reflective clothing or equipment and limiting the time and place where they may operate.52 To protect the safety of pedestrians, many state and local laws ban the use of motorized vehicles and scooters on sidewalks. Municipal codes may have provisions regulating the types of vehicles and mobility devices that are allowed on sidewalks. Often the modes are treated differently. For example, under Texas law, e-scooters may operate on bike paths, side- walks, and on streets or highways with a speed limit of 35 mph or less, but, in the interest of safety, a county or municipality may ban such operations.53 Electric bicycles, on the other hand, are generally allowed on all streets and bike paths unless other- wise posted in Texas.54 According to an October 2020 research report from the Insurance Institute for Highway Safety, “Poli- cies vary widely among cities on if e-scooters should use roads, sidewalks, bike lanes, or multiuse trails … and to date there has not been research evidence available to guide these decisions.”55 Municipalities may also impose safety, maintenance, and identification requirements on shared micromobility operators, such as: Required equipment, including front and rear lights and side view reflectors. Meeting or exceeding federal requirements for bicycles in private use (16 C.F.R. Part 1512). Because those requirements pertain to indi- 52 See, e.g., N.Y. Veh. & Traf. § 1281(2) (empowering localities to “regulate the time, place and manner of the operation of electric scoot- ers, including, but not limited to, maximum speed, requiring the use of protective headgear, and the wearing of readily visible reflective cloth- ing or material by operators of electric scooters” and “limit, prohibit the use thereof in specified areas, or prohibit entirely the use of electric scooters within such city, town, or village, provided that adequate sig- nage is visibly posted outside the boundaries of such prohibited areas.”). 53 Tex. Transp. Code § 551.352. See, e.g., City of Pearland, Tex. Code of Ordinances § 29-13 (banning the operation of “motor assisted scooter[s] or minimotorbike[s] on any sidewalk, right-of-way, roadway, street or highway, including private roads, within the City of Pearland.”); City of Sugar Land, Tex. Code of Ordinances § 5-113 (prohibiting motor-assisted scooters on streets with speeds over limit of 20 mph and on sidewalks). 54 Tex. Transp. Code § 551.106. 55 Ins. Inst. for Highway Safety (IIHS), Severity of e-Scooter Rider Injuries Associated with Trip Characteristics (Oct. 2020), https:// www.iihs.org/api/datastoredocument/bibliography/2216.

TCRP LRD 59 13 toward parties in the AV and CV supply chain (carmakers, tier 1 manufacturers, software companies, etc.). Product liability law provides remedies for personal injury or property damage against manufacturers of a defective product under the tort doctrines of strict liability, negligence, and mis- representation. As products liability expands, courts are increas- ingly relying on proximate cause to limit the scope of liability.62 Product liability will need to evolve to these autonomous and CVs.63 Some states have adopted statutes that exempt manu- facturers of original vehicles and components from liability for injuries caused by retrofitted vehicles unless a defect already ex- isted. Under Michigan’s AV law, “a manufacturer of automated driving technology, an automated driving system, or a motor vehicle is immune from liability that arises out of any modifica- tion made to a motor vehicle, an automated motor vehicle, an automated driving system, or automated driving technology by another person without the manufacturer’s consent.”64 However, the law further provides that it does not affect any contractual obligations between a motor vehicle manufacturer and a manu- facturer of automated driving systems or driving technology.65 Courts will be responsible for interpreting any new laws per- taining to AV and CV liability and determining the criteria to resolve unaddressed issues. It may take years for AV and CV liability cases to work their way through the court system. In addition, insurance issues will need to be addressed. States that have AV testing regulations generally require those testing autonomous vehicles to have insurance or a bond.66 2.  Transit Signal Priority Liability may arise from vehicle crashes allegedly caused by malfunctioning traffic signal lights.67 When traffic signals black- out or malfunction, the individual drivers navigating the inter- section may be liable. State and local regulations dictate drivers’ duties when traffic lights malfunction. There may be immunity conferred on government agencies as they implement Transit Signal Priority. Whether highway authorities can be held liable 62 Where “the type of harm, manner of harm, or class of persons” harmed is unforeseeable, proximate cause shields manufacturers from liability.” David A. Fischer, Products Liability–Proximate Cause, Inter- vening Cause, and Duty, 52 Mo. L. Rev. 547, 574 (1987). Under the risk-utility test, a “potentially dangerous product is not defective if it is reasonably safe;” under the consumer-expectations test, dangerous products “are not defective if the danger is known or obvious.” Id. at 560. Generally, “where a defective product produces an unforeseeable type of harm because of an intervening cause, proximate cause and interven- ing cause analyses are interchangeable.” Id. at 562. 63 Brookings Institute, Products Liability and Driverless Cars Issues and Guiding Principles for Legislation, www.brookings.edu/ research/products-liability-and-driverless-cars-issues-and-guiding- principles-for-legislation/. 64 Mich. Comp. Laws Ann. § 257.665a. 65 Id. 66 See, e.g., Conn. Gen. Stat. § 13a-260; Fla. Stat. §§ 316.003, 316.85, 316.86, 319.145; Ga. Code Ann. §§ 40-1-1, 40-5-21, 40-6-279, 40-8-11; Nev. Rev. Stat. Ann., Ch. 482A (§§ 482A.010 — 482A.200). 67 See 34 A.L.R.3d 1008. There is uncertainty about who is responsible for dam- ages when a driverless vehicle crashes.58 In a regular vehicle, the automobile driver is typically responsible unless a product defect caused the crash. The liability paradigm in autonomous and CVs is complicated by the degree of human engagement with these technologies. Questions arise regarding the circum- stances under which the driver of a self-driving vehicle can be held accountable based on the vehicle’s level of automation. U.S. DOT uses AV classifications developed by SAE International (SAE J3016).59 There are six levels (numbered 0 through 5) for driving automation that range from no driving automation (level 0) to full driving automation (level 5): • At SAE Level 0, the human driver does everything; • At SAE Level 1, an automated system on the vehicle can sometimes assist the human driver to conduct some parts of the driving task (e.g., adaptive cruise control); • At SAE Level 2, an automated system on the vehicle can actually conduct some parts of the driving task, while the human continues to monitor the driving environment and performs the rest of the driving task (e.g., combined lane centering and adaptive cruise control); • At SAE Level 3, an automated system can both actually con- duct some parts of the driving task and monitor the driving environment in some instances, but the human driver must be ready to take back control when the automated system requests; • At SAE Level 4, an automated system can conduct the driv- ing task and monitor the driving environment, and the human need not take back control, but the automated sys- tem can operate only in certain environments and under certain conditions; and • At SAE Level 5, the automated system can perform all driv- ing tasks, under all conditions that a human driver could perform them. 60 U.S. DOT draws a distinction between Levels 0-2 and 3-5 (“highly automated vehicles”) based on whether the human operator or the automated system is primarily responsible for monitoring the driving environment.61 Questions of whether the driver should—or even could—take over the vehicle in highly AVs under certain situations and whether the driver should know what to do will complicate liability. Apportioning liability to the auto manufacturers, or the creator of the soft- ware or algorithm, will also be a concern. As vehicles become increasingly autonomous (levels 3 and 4) liability will likely shift 58 William J. Kohler & Alex Colbert-Taylor, Current Law and Poten- tial Legal Issues Pertaining to Automated, Autonomous and Connected Vehicles, 31 Santa Clara High Tech. L.J. 99, 135 (2015). 59 U.S. Dep’t of Transp., Federal Automated Vehicles Policy (Sept. 2016), https://www.transportation.gov/AV. 60 SAE Int’l, Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles (J3016_201806), June 26, 2018, https://www.sae.org/standards/content/ j3016_201806/. 61 U.S. Dep’t of Transp., https://www.nhtsa.gov/technology- innovation/automated-vehicles.

14 TCRP LRD 59 In some cases, the city, county, or state has been liable where the traffic signal is faulty or malfunctioning.73 “In cases not barred by the doctrine of governmental immunity, the ultimate question of liability is ordinarily decided under principles of common-law negligence, and depends, of course, on the par- ticular facts presented to the court.”74 3. Positive Train Control Positive Train Control (PTC) is a technology that uses a GPS System with radar and track sensors that allow computers to re- motely control the train to prevent collisions and derailments.75 PTC can prevent train-to-train collisions, derailments caused by excessive speeds, unauthorized train movements in work zones, and the movement of trains through switches left in the wrong position. The Rail Safety Improvement Act of 2008 (RSIA) mandated that PTC be implemented throughout a significant portion of the rail industry by 2015 (subsequently extended to December 31, 2018, with two additional years for testing). The RSIA was developed in response to several fatal rail accidents between 2002 and 2008,76 including the collision of a Metrolink passenger train and a Union Pacific freight train September 12, 2008, in California that resulted in the deaths of 25 and injuries to more than 135 passengers.77 Examples of American railroads with fully implemented PTC that have been approved by the Federal Railroad Ad- ministration (FRA) include Southern California’s Metrolink, North County Transit District in San Diego, TriMet in Portland, Oregon, and PATH in the New York-New Jersey region. According to NTSB statistics, PTC could have prevented 145 train accidents between 1969 and 2015. These accidents killed 288 people and injured 6,579 persons. Numerous personal injury and wrongful death lawsuits have been filed in recent years alleging that train operators negligently failed to imple- ment PTC technology that would have avoided train accidents. On May 12, 2015, an Amtrak Northeast Regional train from Washington, D.C. bound for New York City derailed and crashed in Philadelphia, Pennsylvania.78 The National Transportation Safety Board ruled that the derailment was caused by the train’s engineer becoming distracted by other radio transmissions and “losing situational awareness,” that would have been prevented 73 See, e.g., Wong v. City and County of Honolulu, et al., 66 Haw. 389, 665 P.2d 157 (1983) (city and defendants involved with the instal- lation, maintenance and repair of malfunctioning traffic signal may be held liable for pedestrian’s injuries). 74 34 A.L.R.3d 1008, 2. 75 See U.S. FCC, www.fcc.gov/general/positive-train-control-ptc. 76 Fed. Railroad Admin., Rail Safety Improvement Act of 2008 (RSIA), https://railroads.dot.gov/legislation-regulations/legislation/rail- safety-improvement-act-2008-rsia. 77 Fed. Railroad Admin., Metrolink 111 Collision with UP. Chatsworth. Sept 2008 (Oct. 23, 2019), https://railroads.dot.gov/ human-factors/elearning-attention/metrolink-111-collision- chatsworth-sept-2008. 78 Fed. Railroad Admin., Amtrak 188 Derailment May 2015 (Oct. 23, 2019), https://railroads.dot.gov/. for injuries suffered as a result of designing or planning traffic- control devices—including the signaling sequence of traffic lights—frequently depends on whether the common-law doc- trine of governmental immunity is considered to be applicable.68 Most courts have found that, in the absence of a statute, the initial decision to place a traffic-control device at a particular location is a governmental function, involving discretionary or quasi-legislative powers, and therefore the government is im- mune from liability for accidents claimed to have been caused by their failure to erect a traffic-control device.69 In a few cases, questions of the designing or planning of traffic-control devices (signaling sequence of traffic lights) have been held to be matters not open to judicial determination in tort liability cases. For example, lawfully authorized program- ming of traffic signal lights by a city should not give rise to tort liability by a jury second-guessing the reasonableness and safety of the plan.70 A city’s decision to not install traffic signals at inter section where a cyclist was struck by vehicle and killed was not operational failure, but flowed directly from immune policy decision to use a computer program that evaluated threshold criteria and prioritized signalization of intersections, and thus, city was absolutely immune from liability for failure to install signal there.71 Recognizing a limited immunity with respect to the plan- ning or designing of traffic-control devices, despite the New York waiver of immunity legislation, the court in Weiss v. Fote (1960) 7 NY2d 579, 200 NYS2d 409, 167 NE2d 63, held a muni- cipality not liable for injuries suffered by a pedestrian who was hit by a car which jumped a curb after being struck by another automobile at an intersection where the traffic light, although functioning as planned, was claimed to have been negligently designed in that the clearance interval—4 seconds between the time the green signal for traffic in one direction ended and the time the signal changed to green in the other direction—was too short and resulted in traffic in one direction being “green- lighted” before all cross traffic cleared the intersection.72 68 Id. at 2. 69 See, e.g., Buchenroth v. City of Cincinnati, 2019-Ohio-2560, ¶ 4, 140 N.E.3d 114, 115 (Ct. App.) (“It is undisputed that the city is a “polit- ical subdivision” as defined in R.C. 2744.01(F), and that the mainte- nance of crosswalks and traffic-control devices is a governmental func- tion under R.C. 2744.01(C)(2)(e) and (j). This means the city is generally immune from tort liability for the maintenance of crosswalks and traffic-control devices.”); Blackburn v. St. Louis, 343 Mo. 301, 308, 121 S.W.2d 727, 730 (1938) (“the city is not liable for the performance of its governmental duty to regulate traffic by the location and maintenance of the sign at the intersection.”); Tex. DOT v. Olivares, 316 S.W.3d 89, 97 (Tex. App. 2010) (“the general rule [is] that traffic-control device place- ment was a discretionary governmental function” and the State retains statutory immunity for discretionary sign-placement decisions.). 70 Id. at 3. See also Raisanen v. Milwaukee, 35 Wis 2d 504, 151 NW2d 129 (1967) (holding that a complaint alleging damages because of the way in which a traffic signal with a left-turn arrow was pro- grammed failed to state a cause of action in negligence). 71 A.R.S. § 12-820.01. See also Kohl v. City of Phoenix, 160 P.3d 170 (Ariz. 2007). 72 Weiss v. Fote (1960) 7 NY2d 579, 200 NYS2d 409, 167 NE2d 63.

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The nation’s 6,800 plus public transportation agencies need to have access to a program that can provide authoritatively researched, specific studies of legal issues and problems having national significance and application to the public transportation industry. Some legal issues and problems are unique to transit agencies.

The TRB Transit Cooperative Research Program's TCRP Legal Research Digest 59: Legal Issues and Emerging Technologies provides transportation attorneys with guidance and resources to assist with these legal changes resulting from the implementation of technology, including regulatory challenges, risk management, cybersecurity, privacy, handling confidential and proprietary information, intellectual property rights, civil rights and environmental justice compliance, labor and employment law, and procurement issues.

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