The death of Elaine Herzberg, a 49-year-old woman, who is reportedly the first victim of a self-driving car on a US public road, has generated debate about Arizona’s lax regulatory climate.
After Governor Doug Ducey’s well publicised embrace of the automated vehicle industry made self-driving Ubers a common sight in Tempe and Scottsdale, a fatality was expected at some point.
While the tragic event should occasion rigorous analysis of the regulatory approach to automated vehicles, it is no reason to abandon Arizona’s open approach to innovation.
Equally, Uber and Toyota’s suspension of self-driving car testing is good optics but probably unnecessary.
Let’s review what we know so far:
- The Uber car was traveling at 40mph (65km/h) in full autonomous mode on Mill Ave., Tempe;
- There was a “safety driver” in the car;
- Elaine Herzberg was pushing a bike and crossing the busy road outside the crosswalk at 10pm when she was struck;
- The safety driver, 44-year-old Rafaela Vasquez, previously served time in jail for armed robbery;
- Herzberg and Vasquez were not impaired at the time;
- The car did not appear to slow down at the time of the crash;
- Herzberg died from injuries sustained in the crash.
The police have now indicated that Uber was likely not at fault for the accident; The chief of police in Tempe, Sylvia Moir, is quoted as saying: “The driver said it was like a flash, the person walked out in front of them …His first alert to the collision was the sound of the collision.”
The police chief has reviewed the video of the collision and described it thus: “It’s very clear it would have been difficult to avoid this collision in any kind of mode based on how she came from the shadows right into the roadway.”
The police chief’s statements must give Gov. Ducey comfort that his light-touch approach to regulating self-driving cars is not to blame for the accident.
To recall, Ducey adopted a highly industry-oriented approach to regulation in 2015.
This was modified slightly in March, 2018, by an executive order recognising that the state had “become a hub for driverless car research and development with over 600 vehicles with automated driving systems [undergoing] testing on … public roads for more than two years.”
The Order expresses belief that the “implementation” of self-driving cars “will provide a dramatic increase in pedestrian and passenger safety, reduce traffic and congestion, and improve the movement of residents and commerce.”
The order continues with the light-touch approach expressing the bare-minimum of common sense mandates:
- Like other vehicles, self-driving vehicles are “required to follow all federal laws, Arizona State Statutes, Title 28 of the Arizona Revised Statutes, all regulations and policies set forth by the Arizona Department of Transportation.”
- Prior to testing AV without a human, operators are required to submit a statement within 60 days to the Department of Transport certifying compliance with federal and state law and motor vehicle safety standards, insurance requirements, title, licensing, and bearing required certification labels.
- If it operates without a human and the car has to be able to achieve a “minimal risk condition”: a “low-risk operating mode in which a fully autonomous vehicle operating without a human person achieves a reasonably safe state, such as bringing the vehicle to a complete stop, upon experiencing a failure of the vehicle’s automated driving system.”
- The state may issue citations/penalties to the operator for violations of applicable laws.
- Failure to submit the mandated statement will result in the issuance of a “cease and desist” letter revoking permission to operate AV on public roads.
- The state will develop a “law enforcement interaction protocol” in consultation with industry and all operators are expected to adhere by this protocol.
Other states have adopted more detailed legal rules; 33 states introduced laws in 2017 alone. For instance, Michigan Act No. 333 (2016) specifies that “during the time that an automated driving system is in control of a vehicle in the participating fleet, a motor vehicle manufacturer shall assume liability for each incident in which the automated driving system is at fault.”
Georgia law of 2017 imposes a super-insurance requirement until December 31, 2019: AV has to be “covered by motor vehicle liability coverage equivalent to 250 percent of that which is required under: (i) Indemnity and liability insurance equivalent to the limits specified …; or (ii) Self-insurance … equivalent to, at a minimum … the limits specified.” Nevada’s law enables the operation of autonomous vehicle network companies, subject to a permit and rigorous document retention and disclosure requirements.
Some countries have laws that require a human to be present in the vehicle at all times and operators are subject to stringent permit, insurance, reporting of all accident and collision data, and document retention obligations.
Whatever the merits of these more onerous legal requirements, it is clear that such mandates would not have prevented the death of Elaine Herzberg.
It appears that Uber is not at fault, that a defect with the vehicle did not cause the accident, and that the safety driver was not impaired and could not have stopped the collision.
Clearly, absent fault, Arizona’s enabling legal climate should not be a casualty of this tragic accident.
However, Ducey’s executive order can be improved.
As a first step, operators must be mandated to report collision and disengagement data thoroughly and retain test-related information.
At a minimum, that will allow us to tailor more extensive legal reforms with the benefit of actual evidence.
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