A week ago, an Uber car in autonomous mode with a safety driver behind the wheel hit and killed a woman who was jaywalking with her bike across an eight lane street in Tempe, Arizona. According to the Tempe police chief, 49-year-old Elaine Herzberg stepped out in front of the car from a center median and the AV was not responsible. Friends of Herzberg have called for Uber to be held accountable.
A terrible tragedy magnified all because the car that hit the pedestrian was driving autonomously.
Several days later, the video of the accident was released. UC Berkeley research engineer Steven Shladover told Wired.com after watching the video, “I think the sensors on the Uber vehicle should have seen the pedestrian well in advance. If she had been moving erratically, it would have been difficult for the systems to predict where this person was going.” Herzberg, however, was traveling at a 90-degree angle to the vehicle and fully visible.
The video also shows the driver, Rafaela Vasquez looking down and away from the road in the seconds before impact. Even if the Uber driver could have taken over the wheel, many experts feel Vasquez would not have been able to stop the car in time.
A tremendous outpouring of media reports and editorials concerning the incident avalanched the NMA Driving News Feed this past week. Most with probing questions on whether autonomous vehicle (AV) testing is safe for public roads, how did the openness of regulations in Arizona allow this tragedy to occur, will this crash affect federal regulations that are currently pending before Congress and my favorite—Now What?
Uber announced the company would suspend all AV testing in the San Francisco, Pittsburgh, Toronto and the greater Phoenix area immediately.
Other automakers immediately reacted as well. Toyota announced that the company would suspend testing in the U.S. due to the emotional effect on their test drivers. A Hyundai executive called for caution in the development of AVs. BMW announced, however, that they would double down on AV testing in the states despite the Arizona tragedy.
All this handwringing is expected but the basic question still remains:
Who is really responsible for a driverless car accident?
A J.D. Powers research survey conducted before the Tempe accident indicates that more than half of Americans would likely pursue legal action if injured in a collision with a fully automated vehicle with no driver or steering wheel. Researcher Kristin Kolodge noted that those surveyed are holding automated driving systems to “a higher safety standard than traditional vehicles.”
Consumer advocates announced last week that there is a loophole in current legislation before Congress. The AV Start Act does not prohibit forced arbitration. This means that a person who is badly injured while riding in an AV would not be able to take place in a class action lawsuit nor sue the manufacturer. Arbitration proceedings are private and would keep the public in the dark about manufacturing defects.
In a recent CNN interview, Ed Walters who teaches robotic law at Georgetown said, “The nightmare scenario is that someone is hurt because of a defect and it’s dealt with through a confidential arbitration proceeding that nobody knows about, and then more people are hurt because no one found out about it.” Walters added, “Congress should stick up for the right to sue by prohibiting these kind of clauses, but so far they haven’t.”
What has happened, however, is that on March 14, 2018 five U.S. Senators issued a letter outlining concerns of the bill that they feel pre-empts state and local traffic laws. The senators were silent on the topic of forced arbitration.
But arbitration only affects passengers in the AV; not other users of the road struck by an AV.
This first pedestrian fatality by driverless car could establish case law for AV liability should the family press the matter. A specialist in intellectual property practice law and partner at the Detroit law firm of Kerr Russell, Max Sneyd said, “There are not good parallels in the area of emerging technology and intellectual property where public safety is so paramount.”
There have been great strides in AV research, but the last five percent of effort in achieving level 5 (the highest) level of complete autonomy will take the longest with the toughest safety issues to crack.
University of Michigan Transportation Research Institute research scientist Anuj Pradhan said in a recent interview, “The main issue is communicating intent between autonomous vehicles and other road users. This is an important issue that is being researched. The autonomous vehicle needs to infer the intent of a pedestrian from limited information about the pedestrian’s speed, heading, gait, and a host of other features—something that a human driver does quite naturally.” Obviously, this is something that AVs cannot yet do well.
It is unclear at this time if a human driver had been driving in Tempe that March Sunday night, would Elaine Herzberg still be alive? At least, liability would be easier to establish and the law would be clear.
No matter what, though, this accident is still a tragedy and a woman lost her life.
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