Preface: This crash has nothing to do with bicycling other than the pedestrian was pushing a bicycle at the time. Because of the notoriety, the incident has its own wiki article.
3/18/2018 night-time (10pm?) mid-block pedestrian fatality might not even be reported in the news; but this being the first reported AV (Autonomous Vehicle) traffic fatality (in the world?!), it’s huge news.
For those that might not know, Arizona and the Scottsdale / Tempe / Chandler area in particular, is a hotbed of AV; with both Waymo (formerly Google) and Uber operating hundreds of fully AVs. This is characterized as a open-arms policy of Arizona’s Gov. Ducey, compared to some dustups in CA, causing Uber to famously decamp for Scottsdale late 2016, see Uber is shipping its self-driving cars to Arizona after being forced out of SF.
NTSB announced they are sending a team to investigate circumstances. It would be great if the NTSB would send a full team to any of the other 40,000 or so traffic fatalities per year.
A March 2017 uber-involved two vehicle no-injury crash is discussed here.
Tempe police have released an abnormal amount of information; again, normally none of this would even be mentioned. They’ve released the name of pedestrian (Elaine Herzberg), the name of the (“backup”) driver(Rafaela Vasquez), the speed of the vehicle (38mph), where the crash occurred (Mill Ave about 100 yards south of Curry), the direction of the vehicle (northbound on Mill), the direction of the pedestrian (crossing from west to east). As well as some other perfunctory information (e.g. no impairment noted). And that video footage is available and has already been viewed by police.
All this signals that from the rules of the road perspective, a driver (always) has a duty to exercise “due care”; and a pedestrian has a duty to yield to all vehicles mid-block …
§28-793, Crossing at other than crosswalk
A. A pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles on the roadway…
§28-794. Drivers to exercise due care
Notwithstanding the provisions of this chapter every driver of a vehicle shall:
1. Exercise due care to avoid colliding with any pedestrian on any roadway.
2. Give warning by sounding the horn when necessary.
3. Exercise proper precaution on observing a child or a confused or incapacitated person on a roadway.
There’s possibly other duties for the ped, e.g. the is a “no ped xing” sign nearby (longer treatment of “jaywalking” here but it wouldn’t change the duties for this crash.
So according to the all the many details released by police; the ped failed to yield the right of way; and the (human) driver by all accounts was exercising due care by traveling at reasonable speed (if slightly above the posted speed limit), and was not impaired. Those who have viewed (e.g. Tempe police chief) have stated the pedestrian emerged from shadows, and the collision was “unavoidable”. (I wrote that after police looked at the video but before it was released to the public on 3/21; after viewing I’d say two things: 1) the driver was looking down/away at the time; and 2) the forward dashcam video is probably misleading relative to what a human eye of average ability can see in low light conditions)
Aside: the posted speed limit seems to be 45mph (that sign is northbound on the bridge just 1/10th mile or so south of the scene); it was mis-reported (typo?), e.g. an sfchronicle article said “Traveling at 38 mph in a 35 mph zone on Sunday night, the Uber self-driving car made no attempt to brake, according to the Police Department’s preliminary investigation.”. The speed limit continues to be mis-reported as 35mph, e.g. print (3/22 front page) and online (3/21 7pm) azcentral.
The error probably stems from the fact that the speed limit is posted 45mph northbound, but 35mph southbound in the area; the vehicle was northbound, not southbound. The disparity in directions is probably due to southbound feeds into downtown.
Tempe Police distributed the Uber’s video on 3/21 (sooner than I would have expected; again, this is high profile) via their twitter. It appears to show that a human would not been able to avoid the ped; it appears to show that the autonomous systems should have been able to detect and avoid or mitigate the crash — which it apparently did not… The forward dashcam video is probably misleading compared to what a human eye can see in low light conditions.
(Autonomous Vehicle). Referring to the diagram from a NYT news article — the mystery clearly is that the uber’s AV equipment apparently entirely failed to detect the pedestrian; as it was reported the vehicle had not slowed before the crash.
The vehicle’s speed, 38mph, is 56 feet per second.
The pedestrians speed wasn’t stated but a very fast walk might be say 6mph, is 8.8fps.
The crash occurred as the pedestrian crossed four lanes of traffic, and the impact was to the right side of the vehicle (the ped was crossing from left to right). That’s something like 40 feet in the roadway (around 5 seconds). Not enough time for a vigilant and attentive human driver to react perhaps — but certainly enough time for an AV to “see” something and begin to slow.
Did the car’s “vision” system fail to detect the danger, or what? This will certainly come out of the NTSB’s investigation.
Again, highly unusual, but Tempe Police held a News conference: just a couple of exchanges that caught my attention:
Q: “was she homeless?”
A: “I don’t have that information… but i believe she may have been”.
Q: “do you know if it was one of those yellow bikes that you just pick up and…”
A: “Yeah, I know that’s new information here, and, uh, I don’t have that information at this time”
The latter a reference to some dockless bike share issues that have popped up lately. The same area that is heavy with AV is coincidentally heavily bike-shared with, besides Grid (which is docked), Ofo, Limebike, and Spin operating recently.
“it’s very clear it would have been difficult to avoid this collision in any kind of mode (autonomous or human-driven) based on how [the pedestrian] came from the shadows right into the roadway.”
… Initially Chief Moir said, “I suspect preliminarily it appears that the Uber would likely not be at fault in this accident.” Later, Moir expanded on her remarks, saying the “Tempe Police Department does not determine fault in vehicular collisions.” quoted in arstechnica
Chief Moir is not correct regarding fault. Police investigating crashes in Arizona are charged with the duty to determine who, which traffic unit, is “Most at Fault“, this is straight out of the Crash Form Instruction Manual.
Based on all the info released so far, Tempe PD is clearly signaling that the pedestrian will be assigned Traffic Unit #1, (“most at fault”); with a “failed to use crosswalk” in the violations/behaviors block. And furthermore the Uber’s unit will have “no violations” in the behavior/violations block.
Getting back to what Chief Moir said; it’s been suggested that when she said “fault” she actually meant “charges”, as in criminal charges against the driver. That makes more sense — The police investigate crashes and make a recommendation and referral, the (county) attorney charges (serious) crimes, and if he declines — which is a near certainty in cases w/o impaired drivers — the city attorney will then consider lesser charges or infractions. In this case the county attorney would be considering something like negligent homicide, and will decline. And I can’t think of any lesser charges (edit: see below about cell phone ordinance); but a “due care” or “failure to control” infraction is plausible
The dashcam video released by Tempe Police (that was supplied by Uber) very shortly after the crash is highly misleading; it has very poor dynamic range, in it the pedestrian seems to “appear out of shadows / out of nowhere”. Here’s a concise explanation of that effect:
Sean Alexander, of Crash Analysis & Reconstruction LLC, concurred. “Video makes everything in the light pattern brighter and everything out of the beam darker. A human eye sees it much clearer,” he said.
A human eye (had one been looking) would have easily seen somebody walking there; or so it seemed to many locals who felt the Uber video seems way too dark and shadowy. To demonstrate that, a number of night-time youtube videos of the area have popped up, mentioned in an arstechnica article with this pithy title Police chief said Uber victim “came from the shadows”—don’t believe it here’s one (the spot of the crash is at 0:34):
Was Chief Moir duped? She said way back on Monday, quoted from the sfChron interview:
“it’s very clear it would have been difficult to avoid this collision in any kind of mode (autonomous or human-driven) based on how she came from the shadows right into the roadway,”
Duped or not, it now lends the appearance that Tempe Police are in cohoots with Uber. Police are usually/normally much more circumspect; why would non-other-than the Chief say Uber’s video makes things “very clear”, especially less than one day after the incident?
[update added jan 2019; I discovered later that Chief Moir, partially at least, walked back some of her statements, the NewTimes published an article in July Tempe Police Chief Regrets Premature Blabbing About Self-Driving Uber Crash “Yet Moir agreed she used the word ‘unavoidable.’… ‘Perhaps I should have worded it differently,’ she said”. The NewTimes article refers to a Bill Richardson op-ed published in March Your Turn: Tempe police chief shouldn’t have said Uber crash was ‘unavoidable’ which makes the same observations I made about the Chief’s premature statements. ]
As stated above in the Gizmodo news article, according to the Tempe Police Report which wasn’t released until late June, “Tempe police found that the operator of the Uber autonomous vehicle could likely have avoided the fatal crash, had she been paying attention”
There was again, of course, a deluge of media reporting (e.g. azcentral Arizona Republic) when the NTSB made a release of “more than 400 pages of documents” (where are they? Here is an 16 page report) in early November 2019 ahead of a planned Nov 19, 2019 NTSB board meeting when apparently all will be determined/revealed. The gist of the news coverage revolves around “The system design did not include a consideration for jaywalking pedestrians,” I’m a bit surprised the NTSB would use the loaded term “jaywalk”.
Arizona Bike law got a shout-out from Treehugger article regarding the pedestrian mid-block crossing law. The article includes an engineering drawing of new (post-crash) signage that was added by CoT and making an interesting point: “The city has now added a pile of signs where Hertzberg was killed, which kind of suggests that it was inadequately marked.”
Tempe Police Report
Tempe Police’s report on the March 2018 Uber-involved pedestrian fatality has been released, 318 pages(!) it was reported on 6/22/2018 from various news organizations. It would be good if all serious and fatal traffic crashes were investigated so thoroughly.
The crash of an Uber self-driving car that killed an Arizona woman in March was “entirely avoidable,” according to police reports released by the Tempe Police Department. Cellphone data obtained by police suggests that the Uber operator was also streaming an episode of reality show The Voice at the time of the fatal incident. — gizmodo.com
The Yavapai County Attorney’s office is still deciding as mentioned in a 6/22/2018 news story if watching TV while supposedly driving constitutes a crime such as negligent homicide or manslaughter. Note that the Yuma County Attorney brought manslaughter charges, and a jury convicted of him of negligent homicide, against a truck driver who was distracted by facebook.
§13-1102 Negligent Homicide / Felony class 4 / Criminal Negligence..
” ‘Criminal negligence’ means… that a person fails to perceive a substantial and unjustifiable risk… of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. §13-105(9)(d)
I have yet to see the 318 page(!) TPD report yet, but @safeselfdrive, a CA lawyer specializing in AV, posted a bunch of tidbits beginning with this one all day the 22nd; the redactions are interesting/curious. He also mentions/claims: “Carpenter-crossover: when Tempe PD could not locate Vasquez in the days after the collision, it obtained a warrant for cell location, including use of an IMSI-catcher, based on a showing of probable cause for vehicular manslaughter.” Carpenteris a very recent cellphone-records / 4th amendment case.
Yavapai County Prosecutor says…
In early March 2019 (about a year after the incident), Yavapai county prosecutor said there will be no charges pursued against Uber.
Incredibly, they say that charges against the driver — the driver that was watching TV instead of driving — should (still? why didn’t they?) be considered and bounced it back to Maricopa County Attorney. This is almost a year later. “Justice delayed is justice denied”? They must have known this ahead of time, why wait a year; a year already, how much longer? No criminal charges for Uber in Tempe death; police asked to further investigate operator. The arstechnica news report said:
While Uber appears to be off the hook, Uber driver Rafael Vasquez could still face criminal charges. Dashcam video showed Vasquez repeatedly looking down at her lap in the final minutes before the crash—including five agonizing seconds just before her car struck Herzberg. — arstechnica
The misdemeanor charge, e.g. the one mentioned below, has a statute of limitation of a year (i think?). So they can just was another week or two and make it a moot point. The statute on a neg hom or manslaughter is of course longer (3 years? maybe longer?)
An image of the brief letter from yavapai County Attorney Sheila Polk to Maricopa Co Attorney Bill Montgomery is in this 12news feed. It doesn’t offer any legal theories about how the decision was reached regarding Uber corporately, and completely punts on the driver, claiming someone else should do more investigation, it “…recommend(s) the matter be furthered to Tempe Police Department…”. Tempe Police have already recommended criminal charges against the driver based on their extensive investigation including analysis of the driver’s phone use history and inward-facing video showing the driver looking down/away for extended periods.
About a week after Yavapai County’s decision, the Arizona Republic did a fairly comprehensive roundup including overall impacts of AV testing in the Phx metro area; they may or may not be any new details but it’s a good reference
…Chandler and Tempe police records showed some of the vans were followed, drivers were harassed. In late 2017, a man threw rocks at two Waymo self-driving vans.
Soon after, a dark-colored Jeep tried to force vans off the road six times. Waymo later told police that the Jeep driver once came to a stop, got out and began yelling at the van to get out of her neighborhood.
Months after the fatal Uber crash, a Waymo driver cruised through a Chandler neighborhood and saw a bearded man in a driveway raise a handgun and aim it at the van [Roy Leonard Haselton he plead guilty to disorderly conduct w/weapon, a class 6 felony CR2018139096].
…A second occupant might have seen Herzberg. The scene was dark, but not as dark as the front-facing camera on the Volvo made it appear in the widely circulated video of the crash.
Police conducted a simulation a few days after the accident. It indicated that a pedestrian and a bicycle would be visible from 637 feet to 818 feet away under the lighting conditions that evening.
Investigators later looked at the speed of the car, braking ability, lighting conditions, and Vasquez’s half-second reaction time once she did see Herzberg.
Had Vasquez been paying attention, they found, she could have stopped the car 42.6 feet before the impact.
But Vasquez never touched the brake until after the crash.
The crash would not have happened even with a driver whose reaction time was twice as slow as Vasquez’s, had the driver been watching the road.
It would have been close. Someone with a 1.25 second reaction time who pressed the brake would actually skid past the point where Herzberg was hit. But the extra time given to Herzberg from a braking car, rather than one traveling more than 40 miles per hour, would have afforded her time to make it across the street and out of the vehicle’s path.
“For these reasons,” Detective Kasey Marsland wrote in the “avoidability analysis,” “the crash was deemed entirely avoidable.”
…Polk had kicked the possibility of prosecuting Vasquez back to Maricopa County. Despite hundreds of pages of police reports from Tempe, Polk recommended further investigation by that department to determine whether criminal charges are appropriate for the driver.
“Based on the entire investigation, this office has concluded that the collision video, as it displays, likely does not accurately depict the events that occurred,” she wrote, adding that additional examination of video and other evidence was needed.
It’s like it never ends: As of July 2019 (so, 16 months later), the Maricopa Co Attorney is still dithering… azcentral.com reports “The Maricopa County Attorney’s Office says prosecutors asked for more investigation before making a decision about whether to charge backup driver Rafaela Vasquez”; as a result Tempe Police were conducting “lighting tests”.
Placeholders for any criminal case filings.
A news and court lookup as of 12/12/2018 didn’t turn up any outcomes as of yet.
Wiki article outlines the #distraction case.
Unlawful use of a mobile electronic device?
Separate from all that, the video released by Uber clearly shows the driver spending a lot of time looking down at something (off camera); was it a phone? Might this constitute a violation of Tempe’s Sec. 19-55. Unlawful use of a mobile electronic device. ? Note that in the case of a serious crash, “he or she was involved in a motor vehicle accident that results in great bodily harm, permanent disability, disfigurement, or death”, it’s irrelevant who caused the crash, and that in the case of death, the violation becomes a Class 1 (most serious) misdemeanor.
This might come into play against the human driver, especially if the county attorney declines any felony charges against the driver; something I expect to happen.
Strangely there’s what appears to be a pedestrian plaza with brick pavers in the median right in the area of the fatality, with no particularly legal way to reach it on foot — all four “entrances” to the X shaped path are marked no ped xing).
3/26 Gov. Orders Uber to halt testing AV
So this is in essence symbolic, since Uber already self-suspended, but in any event
“In the best interests of the people of my state, I have directed the Arizona Department of Transportation to suspend Uber’s ability to test and operate autonomous vehicles on Arizona’s public roadways.” bizjournals.com
The extensive wiki article on the Death of Elaine Herzberg contains many helpful references to the ‘assured clear distance ahead‘ rule, and the Basic speed law, i.e. it is the driver’s responsibility to be able to stop in time, e.g.:
Gleason v. Lowe, 232 Mich. 300 (Supreme Court of Michigan October 1, 1925) (“…every man must operate his automobile so that he can stop it within the range of his vision, whether it be daylight or darkness. It makes no difference what may obscure his vision, whether it be a brick wall or the darkness of nightfall. … He must … be able to see where he is going, and if his range of vision is 50 feet, if he can see 50 feet ahead of him, he must regulate his speed so that he can stop in a distance of 50 feet; if he can see 20 feet ahead of him, he must regulate his speed so that he can stop within 20 feet, and so on.”).
Notice of Claim Filed against Tempe
Feb 2019: Tempe faces $10 million claim in Uber self-driving vehicle fatality seems to revolve mostly around the incongruity of brick pathway.
Criminal Investigation against Driver
…still drags on. In Nov 2019 newtimes revealed and reported on a lighting study commissioned by Tempe Police for prosecutors (emphasis added):
“It is our opinion,” the report continues, “that Ms. Herzberg could have easily been seen by Ms. Vasquez even if the Volvo’s headlamps had been turned off.”
Further, the report says that as long as Vasquez met the minimum visual acuity for a driver’s license under Arizona law, and with the lighting conditions at the scene, she “could have seen and recognized that a person was walking across the road from a distance of 1700 feet away with or without the Volvo’s headlights.“
The roadway was BRIGHTLY illuminated, contrary to Uber’s misleading video, and Chief Moir’s premature, and unquestioning belief of it.