This happened in Brasov City in Romania. The tourist tripped on a hole created by some missing pavement and the Tesla had a split second to react, but managed to swerve and avoid the falling man. Everybody was ok. No major injuries. Both cars are insured and will be fixed on the insurance policy, but the question is who is to blame.
Under public policy, the Tesla was faced with the trolley dilemma and had a choice between killing a person and crashing into the other car.
Under a standard public policy assessment, there should be no liability for the Tesla crashing into the other car.
Each car insurer should pay their own costs as long as it is established that the Tesla car could not have stopped before hitting the pedestrian.
By convention, also, the insurers **should** treat neither “driver” as at fault and neither driver should suffer a “claim” on their insurance.
The proximal cause of the incident was the pedestrian falling into the path of the car, something that was unforeseeable.
There is the possibility that in fact a liability would lie with the municipality for having an unsafe pavement as if is foreseeable that a person may trip in the hole and fall either injuring themselves or falling into the road causing exactly the issue seen.
The position differs where another vehicle or a loose object in involved.
For example, if it was a moped driver or cyclist using the road, who fell, then the driver behind them is liable as not having adequate stopping distance, assuming that the moped driver or cyclist didn’t do something stupid like collide with a roadside bollard and come to a complete stop – there is precedent for this happening with pot-holes and in such cases the car driver behind is obligated to drive with adequate stopping distance. The stopping distance should also allow for the vehicle in front to stop, and this is where an experienced driver skillset lies. A bicycle can stop almost instantly. A motorbike can stop quicker but not as quickly as a bicycle and a car skids further. It is for the driver to ensure that they have adequate stopping distance in the particular cirumstances. There is precedent for a following driver who collides with a stopped car avoiding liability where the front car, for example, hits a wall and stops dead, and where the driver behind can show that they would have stopped if the car in front had braked normally, albeit an emergency stop.
There is also precedent for an item blowing off the pavement, when the owner of the item is liable as it is inadequately secured (caselaw on rubbish bins blowing into the road).
What is not clear is how the matrix applies when the car cannot identify the object quickly enough and doesn’t know if it is a bin (light as able to crash into) or a steel drum (heavy enough to kill the driver. In that case, it is likely that the Tesla driver is liable to the other car, but that the owner of the item that is inadequately secured and blows into the road is liable to the Tesla driver for all losses including their liability to the other driver.
In the above case, therefore, if the pedestrian simply fell into the path of the Tesla then
(i) Under public policy, the Tesla was faced with the trolley dilemma and had a choice between killing a person and crashing into the other car;
(ii) Under a standard public policy assessment, there should be no liability for the Tesla crashing into the other car;
(iii) Each car insurer should pay their own costs as long as it is established that the Tesla car could not have stopped before hitting the pedestrian;
(iv) By convention, also, the insurers **should** treat neither “driver” as at fault and neither driver should suffer a “claim” on their insurance.
(v) The proximal cause of the incident was the pedestrian falling into the path of the car, something that was unforeseeable. Indeed the Tesla should get an award for exemplary driving.
In this case however, the pedestrian didn’t simply fall into the path of the Tesla, but fell into a hole in the pavement that was the responsibility of the municipality, therefore public policy should not apply and
(i) The Tesla was faced with the trolley dilemma and had a choice between killing a person and crashing into the other car and correctly chose the other car;
(ii) The municipality is liable both to the pedestrian and to those foreseeably impacted. As the pavement is alongside a road that does not have safety rails, then it is foreseeable that the hole may cause a pedestrian to fall, and possibly to fall in the path of a vehicle.
(iii) The proximal cause of the incident was the hole not being filled in and pedestrian falling into the path of the car. The non-tesla driver would claim liability against the Tesla driver and the Tesla Driver would issue a third-party contribution notice against the municipality. If successful against the municipality, both drivers would have a “non-fault claim” and should not lose their no-claims discount.
The position is always predicated on the drivers having kept proper stopping distances.
Things might change however when the Tesla driver has tweaked the priority given to decision making from the standard normative setting to a setting that prioritises driver safety and this is why currently that setting cannot be accessed by the car owner.
As we move to a self-drive future, the car manufacturers will provide the insurance and it will become compulsory for all road users, including mopeds, e-cycles and pedal cycles to have vehicle identification plates and compulsory insurance.