Who is Responsible After a Collision in a Self-Driving Car?

In March 2018, people worldwide were horrified to hear about the death of Elaine Herzberg, the woman in Tempe, Arizona killed by a self-driving car when crossing the street. The car, owned by ride-hailing service Uber, was part of a test program for self-driving cars in that city.

Herzberg was jaywalking with her bike across Mill Avenue at night when she was struck and killed. There was a driver behind the wheel who was supposed to be minding the car to make sure nothing went wrong. She failed to see Herzberg in time because she was purportedly watching a TV show on her phone. The car struck Herzberg before the automated systems triggered the brakes.

After the tragedy hit the press and international attention converged on Arizona, Governor Doug Ducey ordered a stop to the company’s self-driving car tests in the state. Shortly thereafter, the National Transportation Safety Board began an investigation. Uber reached a settlement with Herzberg’s family within two weeks of the incident, according to a news report from NPR. But as artificial intelligence technology improves and self-driving cars receive more attention, it begs the question: who is responsible when something goes wrong?

Is it really a “self driving” car?

For now, self-driving cars—also known as autonomous cars—are not fully automatic on the roadways. All of the autonomous cars are required to have human “backup” drivers, who are tasked with watching the car’s responses and who can take control of driving operations at any time. The “self-driving” aspect of the car is currently controlled by GPS, motion sensors, artificial intelligence, laser scanners, ultrasonic sensors and other proprietary technology. In other words, these electronic systems are still not incapable of failures.

The Society of Automotive Engineers International, developed a ranking system with regards to how much human control is required for the car to operate. A “0” ranking means the car is driven entirely by a human being, and a “5” ranking indicates that the car is completely automatic. Various states in the U.S. have begun enacting specific legislation related to the permissibility of autonomous vehicles on public roads, according to the Brookings Institution, and the U.S. Department of Transportation has released federal standards. Classification systems, such as that developed by SAE, play a role in how the government evaluates which cars are permitted to operate in which modes. All such regulations are geared towards minimizing collisions and maximizing roadway safety.

Who was responsible following the crash in the Uber case?

The legal case of Elaine Herzberg’s death never went to a courtroom — Uber settled it privately before it ever went in front of a judge or jury. At times, that is a good thing for all involved. However, in this instance, it leaves a void in what should be a growing body of knowledge

regarding responsibility for incidents in automated vehicles. And, in that case, the question remains as to how much responsibility was placed on the technology as opposed to the human driver.

Uber could be held liable under conventional tort law if Vasquez, the backup driver, failed to exercise safety precautions, according to a post by the Stanford Law School. Uber could also be held liable under product liability laws if the vehicle failed to protect Herzberg due to its faulty autonomous driving features.

Under comparative fault principles, there also could have been an assessment of fault against Ms. Herzberg, as she was jaywalking across a road in the dark. The Tempe Police Department report also found that Herzberg might have been at fault, according to the Arizona Republic.

Depending on the autonomous level of the car, the backup driver might also be held responsible. Trade publication Insurance Journal noted that, should a lawsuit arise from the Herzberg case in Tempe, Vasquez could also be named as a defendant because the car was not considered fully autonomous and she was required to take safety precautions should the conditions merit it.

What does the future hold?

Technology companies are incentivized to push the release of autonomous vehicles. Such cars do have their advantages — fewer accidents caused by driver error, taking intoxicated drivers out of the equation, taking drowsy drivers out of the mix, and more freedom for elderly drivers and more efficient traffic engineering patterns. More and more states and the federal government are considering laws related to autonomous vehicle technology. Since 2012, 41 states and Washington, D.C. have considered legislation on the topic, according to the National Conference on State Legislatures.

As the technology continues to evolve, legislators and legal professionals will be keeping an eye on how well it can be implemented into our current driving systems. On the roads, drivers will have to keep an eye out too — the car next to you may not have anyone in the driver’s seat