Frank Douma

Frank Douma is a Research Fellow and the Associate Director of the Humphrey School of Public Policy at the University of Minnesota, as well as a Research Scholar at the school’s Center for Transportation Studies. He’s particularly interested in studying the public policy and legal concerns that driverless cars present.

In January, Douma, who also holds a Juris Doctorate, spoke at the Santa Clara Law School Symposium about how self-driving cars will necessitate new laws and public policies. He talked with GJEL about these issues and more in this exclusive interview.

On civil and criminal liability issues

GJEL: What are some of the specific questions that driverless cars will pose to the legal community?

Douma: The real thumbnail is this: If to any extent you still allow the person in the driver seat to have the capability to override the car, you then still leave the bottom line of liability with the person driving. However you are talking about situations where the car is taking over vastly increasing amounts of minute-to-minute and second-to-second responsibility of operating the vehicle, so the degree of responsibility does shift toward civil liability rather than criminal liability. The extent that you are dealing more with negligence, wrongful death, and wrongful injury vs. criminal homicide or even speeding depends on how much responsibility the person has to operate the car and to what extent he is able to take control of the car and operate it.

GJEL: Are there any laws that take a shot at responding to this conflict?

Douma: Nevada has a law on the books and they are about to propose implementing regulations. Hawaii and I think Florida are now looking into similar regulations to make it legal to at least put one of these cars on the streets.

The Nevada regulations are interesting in that on the one hand they require the car to be able to monitor itself so well that it knows when something is not operating properly and if it discovers that problem, it must take itself out of the traffic flow and shut down. On the other hand, it still requires that the vehicle have an override capability so that a human can take it over and operate it and that the person who is in the driver’s seat actually have some kind of operator’s license– whether that’s an autonomous vehicle operator license or just a regular driver’s license is not clear, at least to me.

The question that this raises on the practical side is because this is a vehicle that can safely and legally operate itself, people who are in the driver’s seat are exempt from the ban on texting while driving. To me this creates a bit of dichotomy where you say we are going to allow the driver to engage in other activities besides driving, which makes some sense, but you are still making the driver responsible to be actually able to drive this car.

GJEL: It seems that it would be almost impossible to make a hard rule about when the person driving is fully responsible, from a legal sense, for what happens on the road.

Douma: Where do you end up drawing the line in terms of if the car does something wrong, say if it ends up driving too fast? Do you put the liability on the person in the car who is happily texting and didn’t realize what was happening, or do you say “this car cannot be driven autonomously because it doesn’t work, and it’s up to the driver to go to the manufacturer and get it fixed?”

Here’s another issue: If you have a self-driving vehicle that no one has to be in, is that a tool of terror? Theoretically you could put a bomb in the back or in the seat and send it on its merry way to create all sorts of havoc and mayhem without even having somebody put their life at risk along the way.

How driverless vehicle technology could be introduced

GJEL: You said Nevada has some laws on the books already, what model do their laws offer for legalizing this technology?

Douma: Nevada worked with Google, who has the most advanced prototypes on the road right now, to craft something that would fit the technology, but I think they are also trying to shape the way that the technology works. They’re saying “This is what we are going to allow on the road, if your car doesn’t conform with our laws then it can’t be on the road.”

That’s something we wrestled with at the symposium. What would be the way that suddenly this technology would get deployed? You aren’t going to have complete changeover over night. So going from the existing system to autonomous cars on an autonomous highway system–we aren’t going to see that in our lifetime, maybe not in our children’s lifetime. But how we see this progressing forward is that there will probably be some sort of trickle into the system.

GJEL: Convincing the public that driverless cars is a good idea could be tricky

Douma: Our thought was that roadway congestion would inspire some enterprising person with deep pockets and who sees some opportunity with the technology would create a private freeway for people with autonomous vehicles only. So people could drive their autonomous vehicle normally between Boston and New York or San Francisco and LA, something like that, and they could get on to the special freeway and let it operate by itself. It would be a tolled system to cover the cost of maintenance of the roadway and people could afford to be on it because early adopting folks would have to be wealthy to afford to buy these autonomous car. And if it become popular enough that would create demand to integrate them into the mainstream. I think it has to be some kind of incremental approach.

Consider what would make people want to buy into this. It seems hard to figure out why someone would buy a self-driving car to sit in the same congestion with everyone else. There probably would be some safety improvement; because of the 32,000 traffic fatalities last year 95% were at least somewhat attributable to human error. And that’s the other prong of how this progresses: instead of introducing a self-driving vehicle all at once, you introduce the safety pieces into cars and so overtime people get more and more used to cars handling those types of duties. That benefit in itself, though, is that going to cause people to buy it? Or would you want to sell the technology with additional advantage like driving faster and safer and introducing tangible, realizable everyday benefits?

Driverless cars and distracted driving 

GJEL: You mention that the vast majority of accidents are a result of human error. And many of those are the result of humans interacting with other technology outside of the car. It seems like giving driving duties to the car itself could allow drivers to do what they’d rather be doing–instead of trying to drive and use their smart phones, for example:

Douma: There is an issue right now that a significant chunk if not the majority of driving public does not respect the responsibility they have when operating a car. A lot of the time they think it has become almost mindless so they would rather make sure the music is just right or get in touch with friends by phone (text or talk) or do anything to make sure that driving time is being used a profitably as possible. And that is at the expense of them being really ready to handle an emergency situation should one occur. And you could even extend that analogy that people have become so dependent on their vehicles that they think they should be able to drive them home after they’ve had a few drinks.

Automated vehicle travel can address a lot of those questions by recognizing that people really, in the end, don’t appreciate what they should be doing in the car, so maybe they shouldn’t be the ones who are actually handling them. That’s part of the utopia; you could nip the distracted driving question in the bud. You might be able to reduce the number of drunk driving accidents. But until you get to that point, there is a significant role for public policy to try and remind people about their responsibilities and try to enforce that they should pay attention to them.

GJEL thanks Mr. Douma for his time and insight!

Photo credit: Steven Jurvetson

This guest post is from Francis Hajek, a partner at Wilson & Hajek and author of the firm’s blog.

The National Highway Safety Traffic Safety Administration recently released automobile safety statistics regarding safety belt use across the country.  Personal Injury lawyers like my colleagues and I at Wilson & Hajek follow studies regarding car and truck safety issues in order to stay up to date on any issue that might assist us in providing representation for personal injury victims. Although the failure to wear a seat belt is not admissible in evidence in many states, including Virginia, awareness of the issue can affect driver behavior.

In 2011, the NHTSA reports that national safety belt usage was constant at 84%.  In 2010, the corresponding statistic was 85%.  However, safety belt use dropped by a statistically significant 2% for western states. Interestingly, although seat belt use dropped in the western states, they historically have the highest use of seat belts. In 2011, seat belt use was 93% in western states versus only 80% for southern states.

One factor in safety belt usage that plays a huge role is whether a particular state is a primary enforcer.  What this means is that in those states where failure to wear a safety belt is a primary offense, one where you can be pulled over for failure to wear a safety belt, there is a higher rate of compliance and safety belt usage. 32 states have seat belt laws where it is a primary offense, including California, Texas and New York. As you might expect, seat belt use is around 11 to 12 percent higher in primary use states.

The implications of a failure to wear a seat belt are well known by injury attorneys. Often, our most severely injured clients are the ones who were not wearing a safety belt in a car accident. Fatality rates for car accidents and wrecks of all types are much higher for the unsecured driver or passenger. Every personal injury lawyer has had a case where the secured vehicle occupant survived the car accident and the unsecured person did not make it. Sadly, such accident tragedies are entirely avoidable.

Personal injury trial lawyers across the country work with communities to educate drivers about dangers such as a failure to use seat belts on a regular basis. We point out to our audiences the statistics concerning truck and automobile accidents where occupants are surviving the accident, simply because seat belts are being used.   It is our hope that every state will eventually have a law that makes it a primary offense if a car driver or passenger is not wearing a seat belt.  Even more, we hope that everyone will voluntarily wear their seat belt, knowing that it is a smart decision that may avoid a needless tragedy in the event of a car accident.

Photo Credit: Benjamin Goodger

But a reader of the Wall Street Journal from Colorado wrote in to the Journal with an interesting suggestion: what about enlisting the help of insurance companies?

“Car-insurance companies could simply add a clause to deny coverage to customers if an accident occurs while the driver is using a cellphone. The risk of a crash, including the liability of injury to others, would expose the driver to paying all damages out of pocket. I wager that this would put a fairly swift end to this practice for most people. ”

It’s a compelling proposition, considering that right now the financial deterrent for texting and driving is relatively low compared to the fines for drinking and driving. However, the idea isn’t picking up much steam in the insurance industry.

In an email to the New York Times, State Farm’s Dick Luedke said that insurance companies usually pick up the check, even when the driver has been negligent by drinking and driving. “Generally speaking, we fulfill our promise even when the person to whom we make the promise violates the law, and we fulfill our promise to the person who texts while driving, whether or not that person is violating the law.”

While a lack of insurance coverage could be a deterrent to the driver, the flip side is that if an insurance company refuses to foot the bill for a distracted driver’s accident, that bill can include health care costs to the victim as well. If someone is texting and driving and smacks into another vehicle, seriously wounding a passenger, the texting drivers insurance wouldn’t cover those hospital bills.

What seems more practical is that insurance companies will adjust their rates to penalize distracted drivers. While this seems to be common sense, greater public awareness that distracted driving will directly cost the driver may help pressure drivers to put down the phone while behind the wheel.

Ultimately, relying on extra-legal means to set the bounds of behavior seems counterintuitive. If distracted driving is a mistake that we as a society believe should be punished by thousands of dollars of car repair and health care costs, shouldn’t the maximum fine for being caught texting behind the wheel represent that cost? Philosophically, it makes sense to spend energy treating the disease, which is texting and driving, rather than the symptoms, which are the wrecked vehicles and lives that result from distracted driving.

Photo Credit: Jason Weaver

He observed the officers hanging out on the corner in plain clothes and on motorcycles, waiting for cyclists to roll right through the busy intersection’s stop light before issuing warnings.

The bent of the UA blog reflects what is often a confrontational relationship between drivers and cyclists in San Francisco. However, the posts author, Kevin Montgomery, is quick to point out that the cyclists he saw being pulled over earned the warnings they received.

I appreciated Mr. Montgomery’s perspective here: he’s clearly an advocate of cyclists, but recognizes that if cyclists wanted to be treated with the rights and respect that car drivers give each other, they must also be willing to obey the law. It’s a 450$ fine for drivers who run red lights, and half that for cyclists.

As someone who rides a bike for my morning commute and writes about street safety on this blog, I’m constantly conflicted about the right way to behave. I read and write about tragic stories of cyclists injured with their headphones in, running a stop sign or simply being whacked by a turning vehicle that fails to yield. Still, I find myself cruising through empty intersections when there are red lights and taking advantage of the “freedom” cycling imparts to switch lanes and generally behave very differently than I would if I was driving a car.

I think the majority of the reason why I ride how I ride, and I think it’s fair to extrapolate to a significant portion of the cycling community, is because I know I won’t be ticketed, and I know cars won’t treat me with the same caution and respect they would even a motorcycle, let alone another car.

But I wonder: if police held cyclists to the same standards as car drivers, would cyclists begin to more uniformly see themselves, and behave like, cars? That is– never going on the sidewalks, riding in the middle of lanes, honking be damned, and stopping/signaling when appropriate? And if that happened, would car drivers treat cyclists better?

It seems that one of the big issues in bike safety is that not everyone within the cycling community rides by the same rules, which is largely an understandable response to inconsistent conditions. But the result is that drivers, the people who pose the greatest danger to cyclists, aren’t sure exactly what to expect from those with whom they share the road. Ticketing, or at least warning cyclists that running red lights might be punished, could go a long way to encouraging uniform cyclist behavior.

Turk and Market is one of the deadliest intersections in San Francisco, with drivers rushing to make brief green lights and an abundance of pedestrians and cyclists. It’s in places like this that everyone needs to be on the same page, and following the same rules. As the officer told Mr. Montgomery “I’m just out here looking out for your safety.” In this circumstance, on this dangerous intersection, even skeptics understand that a few tickets and warnings now will keep commuting cyclists safer.

Photo Credit: Ell Brown

In the public mind, taxis represent congestion, reckless driving and annoyance. But in reality, a large taxi system is one of the most important ways to make the roads safer and a city greener. That’s because, as Supervisor Weiner put it, “If we really want to get people out of their cars, we need a reliable Muni, an effective car-sharing program and world-class taxi service.”

He’s backing up his words by bringing the issue before the Metro Transportation Agency and asking for a board meeting to understand what the city is currently doing to improve taxi service in San Francisco.

“People need to know that if they need to get somewhere quickly, they can jump in a cab and get there. And I personally have people tell me that if they knew they could get a cab when they wanted, they would sell their cars tomorrow,” Wiener told us.

It’s worth noting that not only are cabs convenient, and a replacement for people who don’t need cars all the time, but can’t commute only by public transportation, they are safe. A major 2004 study by then consultant Bruce Schaller, who is now Deputy Commissioner for Planning and Sustainability at the New York City Department of Transportation, found that accidents were far less frequent amongst taxis than the general population. In his New York study, the crash rate for taxicabs was 4.6 reported accidents per million miles traveled as compared to 6.7 reported accidents per million miles for all vehicles.

Schaller theorized that this can be attributed to the fact cab drivers are professional drivers, and though xenophobic stereotypes say otherwise, almost anyone who spends that much time behind the wheel is going to be competent. Further, if your livelihood depended on not hitting pedestrians, cyclists and other vehicles, wouldn’t you be less likely to get in a collision?

We applaud that carsharing keeps cars off the road, and it’s perceived as a modern invention that harnesses the power of the internet to make cars accessible to anyone. Well don’t forget taxis–the original carshare service! This is an important cosmetic and functional improvement that San Francisco’s government should support. It will make the streets safer and less congested and city living more convenient.

Photo Credit: Blue Waikiki

But when you look at this image of the proposed design (below), which would remove parking spaces rather than constricting traffic flow by cutting into driving lanes, that left hand turn gives me plenty of pause. See I have spent a lot of time in Washington DC before working for GJEL, and when the city implemented its bike-friendly updates, part of that was putting in what is essentially the bike highway on 15th street NW.

Proposed design of bikeway on Fell and Oak

Most of the design is the same as what is proposed on Fell and Oak, 15th is a oneway, three lane street with heavy traffic. The big difference is that the left hand turn lane does not infringe on the bike lane. At no time do bikes and cars mingle. They even coordinated left hand turn lights with the bike lights to make sure that drivers should never have to worry about sideswiping a cyclist flying up the street.

As a bike-rider, the results were great. The sense of security in using 15th street is unparalleled, and it is an essential artery for riders around the city. Even though there are bikelines throughout DC, it’s worth going to 15 street where you can be sure to be out of drivers’ ways and separated by a barrier.

The city of San Francisco has done something similar at Fell and Masonic, where cameras and light signals ensure that drivers don’t creep into the cyclist thoroughfare.

I think one of the big pluses of the 15th street bike corridor in DC is that it sort of cordones off an area where cyclists feel safe and where cars don’t feel like they are competing for space. It encourages cycling while removing them from the most dangerous and high-conflict areas. Bikers aren’t going anywhere, in fact they are growing in number. Structural advancements, like the Fell and Oak bikeway, are crucial to accommodating the shifting modes of transportation in San Francisco. Smart implementation of just a few such bike highways like DC’s throughout San Francisco could go a long way to alleviating the stressful relationship between bikes and cars in the city.

But a ton of cyclists and an appetite to hit the roads does not a great biking city make. There’s plenty to be said about the rough relationship that San Franciscan cyclists share with their automobile neighbors, and indeed the city’s lay out itself, with narrow streets and steep hills, doesn’t exactly scream “ride these streets!”

People are working to change that, though. San Francisco Metro Transportation Agency is installing 15 new bike corrals throughout the city, which should provide space for about 150 more bikes. That may not sound like a massive figure, but seeing as there are only nine such corrals currently in the city, it’s a significant bump. This move doesn’t constitute a sea change, but it is progress nonetheless. To wit, the benefits are:

• Better visibility for bikers. When drivers see bike corrals, especially on corners, they expect to see riders as well.
• Better visibility for local businesses. These bikes will take up the space of a single car space. That means up to 12 people where before only a few could park. That means more foot traffic around street-facing businesses, and hopefully more people brings more business.
• Corrals open up space for cafés and sidewalk seating. Aesthetically, a bunch of bikes is nicer than having cars so close to potential sitting areas.

Here are three of the best clips from our discussion, which focused on issues pertaining to pedestrian safety: How do we ensure the safety of our most vulnerable pedestrians like children and the elderly? What are some of the trends in California? And what is being done to improve things?

Clip 1: Wendy Alfsen on speed limits, their effectiveness, and how to get drivers to slow down.

Clip 2: Elizabeth Stampe explains how only a few mile an hour difference in speed can be the difference between life and death in a car-pedestrian collision.

Clip 3: Elizabeth and Wendy breakdown how government spending impacts pedestrian safety in alarming ways.

A big thank you to both of our guests! Be sure to follow along as we discuss more pressing safety issues on Word on the Streets.