By: Callie Brister

Member, American Journal of Trial Advocacy

On March 18, 2018, Elaine Herzberg, was struck and killed by a self-driving Uber car in Tempe, Arizona.[1] The accident is believed to be the first pedestrian fatality caused by self-driving technology.[2] Although the car, a Volvo XC90, had a safety driver behind the wheel, it was operating in autonomous mode when it struck Ms. Herzberg.[3] When using self-driving technology, most safety drivers are instructed to keep both hands hovering over the steering wheel, which allows them take control of the car quickly in the event of an emergency.[4]

Police reports indicate that Ms. Herzberg, age 49, was walking her bicycle across the street when she was hit.[5] The self-driving car was traveling around 40 miles per hour in a 45 mile per hour speed limit zone when the car struck Ms. Herzberg.[6] Although there has been discussion about the safety driver being at fault for not having both hands over the wheel at the time of the accident, the end conclusion is still clear: the self-driving car should have recognized someone crossing the road.

Transportation Technology: The Evolution of Self-Driving Cars

Uber and other tech companies began testing self-driving technology in 2009 and have expanded testing in cities all over the country.[7] According to tech companies, the future with self-driving cars will prove to be safer because it removes the human distraction component.[8] However, tech companies also acknowledge that researchers are still struggling to program the self-driving technology systems to adjust to “unpredictable human driving or behavior.”[9]

In Arizona, state officials saw driverless cars as a rewarding opportunity and invited companies to test their robotic vehicles on state roads.[10] Arizona was considered an ideal place for testing because of its “favorable weather and dry roads.”[11] In early 2018, Uber had programs in Arizona, San Francisco, Pittsburgh, and Toronto.[12] However, after the accident, Uber quickly suspended its programs in all four cities – a move in which Tempe Mayor, Mark Mitchell, called a “responsible step.”[13]

What Does This Mean for Other States?

The effect this accident will have on other states and regulations is not yet clear.[14] However, some states and state officials have spoken up to indicate that self-driving technology still has a long way to go before it is safe for everyone on the road.[15] For example, California was just a few weeks away from allowing self-driving cars to be tested without a backup driver when this accident occurred.[16] In light of the recent accident, a representative of California’s Department of Motor Vehicles released a statement that said its officials were in the process of gathering more information about the Tempe crash.[17] Additionally, the National Transportation Safety Board put out a news release that it would be sending a team to investigate and examine “the vehicle’s interaction with the environment, other vehicles[,] and vulnerable road users such as pedestrians and bicyclists.”[18]

Who is Responsible When a Self-Driving Car Wrecks?

After the accident, a spokesman for Arizona’s Governor released a statement saying there would be an updated order from the governor that “provides . . . clarity on responsibility in these accidents.”[19] The question then becomes, who is responsible in these types of accidents? As most would assume, there has been an ongoing debate over legal liability when it comes to determining fault and responsibility.[20]

Elizabeth Joh, a professor at U.C. Davis specializing in technology and the law, said that today’s news is just “another example of tech experimentation outpacing thoughtful regulation.”[21] Professor Joh opines that questions about responsibility for these accidents should be drawn from tort law, which then considers negligence and liability questions.[22] Alternatively, John Villasenor, a law professor at UCLA, is of the opinion that product liability would give the best guidance in apportioning fault for cases involving emerging technology.[23]

Rather than chose a side, some scholars argue that responsibility for the Arizona accident should be attributed to neither vehicular negligence nor product liability.[24] To these scholars, the vehicular negligence argument fails because a person is both driving, and not driving at the same time.[25] Alternatively, others assert that the product liability argument fails because there is no product being sold or leased.[26] However, despite wide-spread disagreement within the legal community, there is general acceptance that self-driving cars implicate the vehicle manufacturer more than the operator.[27]

Although a number of states have responded to certain issues of liability and responsibility, it still remains unclear as to who is ultimately responsible.[28] For example, last December the California State Department of Motor Vehicles rejected a proposal backed by General Motors aimed at shifting liability from the consumer to the customer “if a self-driving car’s sensors weren’t properly maintained.”[29] A few months later, however, California took a step in Arizona’s direction when they repealed a rule requiring a person to be in the driver’s seat during autonomous testing.”[30]

Regardless, states play a role in vehicular regulation.[31] According to the National Association of State Legislatures, twenty-one states have laws that regulate self-driving vehicles.[32] The regulations among the states vary across the board from strict regulations to wide-open regulations.[33] An example of a strict regulation would be Nevada’s law, which not only requires two operators to be inside the self-driving vehicle during a test on public roads, but also requires the self-driving vehicle follow a pilot car.[34]

Hill legislators also have responded on the issue by passing a bill.[35] Last September, the House of Representatives “passed a bill supported by manufacturers that ‘would make it so that states can longer write legislation that the auto industry considers restrictive.’”[36] However, the Senate has yet to respond to the House bill.[37]

Ultimately, the answer is not yet clear. Ryan Calo has been studying driverless cars for almost a decade while teaching law students about torts.[38] Nonetheless, Calo believes there are preparatory steps that should be taken in order to address the issues surrounding driverless cars as they continue to rise.[39] The first thing Calo encourages is to invest in tools that would help mitigate and anticipate robotic behavior by making efforts to understand autonomous systems before testing them in the “wild.”[40] Second, Calo believes it is critical to encourage research and testing for autonomous systems because regulators can and should support research that may throw a kink in the system to see how the system handles it.[41] Finally, Calo believes our society’s ability to stay connected via technology is an asset for monitoring and regulating these autonomous systems.[42]

The question remains unanswered; however, the discussion continues to grow, and will likely be up for debate among the courts soon. That being said, the road to finding an answer of who bears responsibility in these cases, will likely be a long one, with strenuous push and pull from every affected party.

---

[1] Daisuke Wakabayashi, Self-Driving Uber Car Kills Pedestrian in Arizona, Where Robots Roam, N.Y. Times (March 19, 2018), https://www.nytimes.com/2018/03/19/technology/uber-driverless-fatality.html.

[2] Troy Griggs and Daisuke Wakabayashi, How a Self-Driving Uber Killed a Pedestrian in Arizona, N.Y. Times (March 21, 2018) https://www.nytimes.com/interactive/2018/03/20/us/self-driving-uber-pedestrian-killed.html.

[3] Wakabayashi, supra note 1.

[4] Griggs, supra note 2.

[5] Id.

[6] Id.

[7] Wakabayashi, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Griggs, supra note 2.

[12] Id.

[13] Wakabayashi, supra note 1.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Wakabayashi, supra note 1.

[19] Id.

[20] Matt Ford, A Self-Driving Uber Killed a Woman. Whose Fault Is It?, The New Republic (March 20, 2018) https://newrepublic.com/article/147553/self-driving-uber-killed-woman-whose-fault-it.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Ford, supra note 20.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Ford, supra note 20.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Ryan Calo, The Courts Can Handle the Deadly Uber Self-Driving Car Cash, Slate (March 21, 2018) https://slate.com/technology/2018/03/the-deadly-uber-self-driving-car-crash-is-just-the-beginning.html.

[39] Id.

[40] Id.

[41] Id.

[42] Id.