Arizona prosecutors have recently announced the outcome of their investigations into the 18 March 2018 crash involving a Volvo XC90 that killed Elaine Herzberg. While the vehicle was operating in autonomous mode as part of an Uber test fleet, the investigation determined that Uber is not criminally liable and as such formal charges will not be brought.

This incident, the first pedestrian fatality involving a self-driving vehicle, gave rise to significant discussion regarding the ethical and legal challenges presented by driverless cars.  It also caused Uber, and a number of other companies, to suspend autonomous vehicle testing.

While these recent findings will likely provide some comfort to relevant industry leaders, the question of attribution of liability is not over and this case continues to prompt further discussion regarding where fault should lie in the event of a fatality involving an autonomous vehicle.

What happened?

The autonomous SUV, which had a backup driver behind the wheel, collided with Ms Herzberg while she was walking her bicycle across a street in Tempe, Arizona. She later died as a result of her injuries.

The preliminary report by the National Transportation Safety Board (available here) determined that the car’s radar and lidar sensors observed Ms Herzberg about six seconds before impact, first as an unknown object, then as a vehicle and then as a bicycle. The data also showed that all aspects of the self-driving system were operating normally at the time of the crash, and that there were no faults or diagnostic messages.

According to that report, the system recognized that emergency braking was needed 1.3 seconds before impact, however the car’s automated braking system had been disabled at the time of the collision to “reduce the potential for erratic behaviour”, and it had been left to the vehicle’s operator to “intervene and take action.”

Why was Uber not held criminally responsible?

On 4 March 2018, after significant evidentiary review, Yavapai County Attorney’s Office announced its conclusion that there is no basis for Uber, as a corporation, to be held criminally liable for the death of Ms Herzberg The matter was then returned to the Maricopa County Attorney’s Office (“MCAO“) for further investigations in respect of criminal charges.

No details were released regarding how this decision was made and the Office has declined to answer any further questions.  However, it seems that the absence of a specific crime of vehicular manslaughter in Arizona statutes may have been significant.  Further, there appear to have been some evidential concerns, with the Attorney’s Office concluding that “the collision video, as it displays, likely does not accurately depict the events that occurred.”

Responsibility shifts to Uber’s backup driver?

In a letter to the MCAO (available here), prosecutor Sheila Polk recommended the case be referred back to Tempe police to collect further evidence, specifically recommending that an expert analysis of the collision video be undertaken to “closely match what (and when) the person sitting in the driver’s seat of the vehicle would or should have seen that night given the vehicle’s speed, lighting conditions and other relevant factors.”

These recommendations follow police reports last year that the vehicle’s backup driver, Rafaela Vasquez, was streaming a television show on her phone just before the collision.  An Uber spokesman said the company has a “strict policy prohibiting mobile device usage for anyone operating our self-driving vehicles.”

According to a Tempe police report, Ms Vasquez looked up just 0.5 seconds before the crash, having kept her head down for 5.3 seconds while travelling just under 44 miles-per-hour, which the Tempe police suggested demonstrated a disregard for an assigned job function to intervene in a hazardous situation and may result in manslaughter charges being brought against Ms Vasquez.

Other potential claims

Last month, Christine Wood and Rolf Ziemann, Ms Herzberg’s daughter and husband respectively, sued the city of Tempe, seeking US$10 million in damages, alleging the city is responsible because the street has a “brick pathway cutting through the desert landscaping that is clearly designed to accommodate people to cross at the site of the accident”, much like a crosswalk, but without additional safety measures.

Lessons learned?

This incident has served to highlight some of the difficult legal questions surrounding this rapidly developing technology.  In particular, the question of who should bear primary liability in the event of an accident – the manufacturer?  The driver?  A third party?  While a number of different jurisdictions are grappling with this issue, at present the answer in most cases, as here, is that this has not yet been established.

What does seem clear however is that wherever liability is determined to sit in the first instance, that will only be part of the story.  The increasing levels of connectivity and automation required in driverless cars is resulting in a rapid evolution of the automotive supply chain, with a number of new participants, particularly from the tech sector (eg. software, network operators), becoming integral to the manufacture and deployment of these vehicles.  As a result, attribution of liability across this new supply chain in the event of an accident is going to become an increasingly important issue.

James Allsop
James Allsop
Senior Associate, Disputes, Tokyo
+81 3 5412 5409
Peter Keeves
Peter Keeves
Graduate Solicitor, Disputes, Australia
+81 3 5412 5427