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On March 18 at around 10PM, Elaine Herzberg was walking her bicycle across a road in Tempe, Arizona when she was hit by a self-driving Uber traveling nearly 40 mph. She later died from her injuries.

Just days after Herzberg’s death, Arizona Governor Doug Ducey banned Uber from testing and operating self-driving vehicles in Arizona. Ducey called the accident “an unquestionable failure” on Uber’s part and reinforced the state’s commitment to public safety.

This accident and the resulting national panic that ensued is a testament to how rapidly this groundbreaking technology is developing and how quickly the faith of an already-nervous public can unravel. The aftershock of Herzberg’s death will certainly be felt in other states that play host to autonomous vehicle testing. What remains to be seen is the magnitude of the shakeup that will follow.

Who is at fault?

The answer to this question depends on who you ask. One of the most worrisome aspects of the development of this ground-breaking technology is figuring out who will be held responsible when the technology fails.

A recently-enacted law in North Carolina charges the registered owner of a fully autonomous vehicle with responsibility for moving violations; however, this statute does not appear to absolve others of liability. Also, not every state has developed legislation to regulate self-driving vehicles.

Without applicable laws, and perhaps even with them, it is difficult to predict who is subject to the greatest amount of liability when an accident like this happens. Is the company developing the technology ultimately responsible? What about the vehicle manufacturer? How about the vehicle owner or, when applicable, the safety driver?

Tempe police recently said that the crash may have been “unavoidable” and would have happened regardless of whether there was a person or a computer driving the vehicle—seeming to place the blame on Herzberg, the now-deceased pedestrian.

Volvo, the company whose XC90 vehicle was being used by Uber when the accident happened, refused to take responsibility. The company explained that its driver-assistance system was disabled when the accident happened and therefore had “nothing to do” with Uber’s driving system. Some have begun to blame the radar technology Uber uses.

This finger pointing and blame shifting does nothing to alleviate the public’s general distrust of self-driving vehicles. A recent study by AAA revealed that 63 percent of U.S. drivers are afraid to ride in a self-driving vehicle—a fear that certainly won’t be allayed by this most recent incident.

Will this tragedy affect the development of driverless vehicles?

It would be foolhardy to think that this accident won’t have serious repercussions for Uber and other similar companies. Immediately following the accident, Uber pulled its self-driving fleet off the roads in Tempe, Pittsburgh, and San Francisco. At least two other companies did the same: Toyota and nuTonomy. Just eight days afterwards, the Arizona Governor—a proponent of self-driving vehicle technology and deregulation—indefinitely suspended Uber’s testing in the state.

This response may seem severe, and perhaps it should be: an autonomous vehicle killed someone. Unfortunately, Herzberg’s death isn’t the first fatality related to the use of autonomous vehicle technology. In 2016, a man was killed in Florida while relying on the Autopilot feature in a Tesla. It is undeniable that these deaths will add to the unease many feel when considering the possibility of driving down the road next to an autonomous vehicle, let alone riding inside of one.

How will North Carolina be impacted?

The Tar Heel State is a burgeoning market for developers of self-driving vehicle technology, who are no doubt attracted to the Research Triangle. North Carolina hosts a number of other resources too, including one of the US DOT’s designated testing locations and its top-ranked automotive sector employment.

North Carolina’s popularity in this industry means that it may be acutely affected by setbacks and accidents. Herzberg’s death may prompt increased resistance to testing that some residents view as dangerous and unreliable. Legislators may increase the depth and breadth of statutes unique to fully-autonomous vehicles, a move that may chase away the companies that use the state’s I-540 Triangle Expressway toll road for testing.

Although these are well-intentioned responses, delays in the development of this technology may do more harm than good. Many expect driverless technology to be the answer to the problem of fatal car accidents caused by things like distracted driving and driving while under the influence of alcohol. NC DOT reports that more than 1,400 people died in North Carolina in 2016 from car crashes and more than 130,000 people were injured. NHTSA recently reported that well over 37,000 people died on U.S. roads in 2016.

In order to most effectively combat negative perception and fear, companies should refrain from shifting the blame to others when accidents happen. Instead, they should focus on taking responsibility and being transparent about their own errors while developing this innovative technology.

Waymo, one of the companies developing self-driving vehicle technology, has been conducting testing on public roads since 2009. Its vehicles have driven over 5 million miles without a single fatality; however, they have been involved in a number of minor traffic accidents. Waymo is able to combat negative perception of the technology it uses by releasing a self-driving safety report and providing insight into how its technology works and the safety measures it is taking. Other companies—especially Uber, for obvious reasons—would do well to follow suit while working to perfect one of the most revolutionary technological advances of our time.

About the Author:

Cheslie Kryst is an attorney at Poyner Spruill LLP, concentrating her practice in complex civil litigation. Before joining the firm she worked for both General Motors Company and Fiat Chrysler Automobiles, developing company strategies for electrified vehicles. She is a graduate of Wake Forest University where she received a JD and an MBA.

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