Updated at 3:15 p.m. ET
An Arizona prosecutor has determined that Uber is not criminally liable in the death of a Tempe woman who was struck by a self-driving test car last year.
“After a very thorough review of all the evidence presented, this Office has determined that there is no basis for criminal liability for the Uber corporation arising from this matter,” the Yavapai County Attorney’s Office wrote in a letter to the Maricopa County Attorney’s Office. Tempe is in Maricopa County, but Yavapai County took the case due to a potential conflict of interest.
Elaine Herzberg, 49, was walking a bicycle across the road at night when she was fatally struck by a Volvo SUV outfitted with an Uber self-driving system in March 2018. The car had a human operator behind the wheel but was in computer control mode at the time of the crash.
In the six seconds before impact, the self-driving system classified the pedestrian as an unknown object, then as a vehicle, and then as a bicycle, a preliminary report from the National Transportation Safety Board explained. While the system identified that an emergency braking maneuver was needed to mitigate a collision, the system was set up to not activate emergency braking when under computer control.
Instead, the car’s system relied on the human operator to intervene as needed. “The system is not designed to alert the operator,” the report notes. The driver swerved less than a second before the crash and did not brake until after impact.
The Arizona Republic has reported that the driver, 44-year-old Rafaela Vasquez, was streaming the television show The Voice in the vehicle in the minutes before the crash. Video from a camera inside the car shows Vasquez looking down immediately before the crash, glancing up at the road from time to time.
Vasquez could face charges of manslaughter. The prosecutor’s letter recommends expert analysis of the collision video that would show what the driver “would or should have seen that night given the vehicle’s speed, lighting conditions, and other relevant factors.”
Uber, which declined to comment for this story, could still be sued in civil court and be forced to pay damages. The government could also potentially pursue criminal charges against managers or employees of Uber.
Herzberg’s family reached a settlement with the company shortly after the crash. Her husband and daughter have also sued the city of Tempe, alleging that a brick pathway that crosses the landscaping was designed for people to cross at the accident site, the Republic reports. The city has since torn out the pathway.
Bryant Walker Smith, a University of South Carolina law professor whose research focuses on automated driving systems, suggests not reading too much into the prosecutor’s letter.
“It’s not necessarily exculpatory — it doesn’t exonerate Uber or put the company’s conduct then or now beyond criticism,” he writes in an email to NPR. “And I’m not sure it tells us much about the criminal, much less civil, liability of automated driving developers in future incidents.”
Smith says he hopes the NTSB’s final report on the crash will illuminate more about the crash. “And I would still like to see Uber publicly apologize and explain what specifically went wrong,” he says. “Companies should earn our trust in part by being candid about their failures as well as their successes.”