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Driverless Cars Part 2: Contributory v. Comparative Negligence

Back in March of 2018, a “driverless” Uber vehicle struck and killed a woman as she was crossing the street with her bike. The National Transportation Safety Board has reported that the vehicle spotted the victim, Elaine Herzberg, about six seconds before impact but the computer system had a hard time recognizing her as a person and instead classified and re-classified her multiple times. Another problem for the autonomous vehicle was an emergency automatic braking system that had been supplied by the manufacturer, but turned off by Uber to prevent “potential erratic” vehicle behaviors.

The backup driver was streaming a show on his phone, and while he did grab the steering wheel to try to avoid Ms. Herzberg he did not attempt to brake until after impact.

The victim was crossing the street in the dark, and in fact; was jaywalking.

So where does the fault lie?

Uber will not be facing criminal charges, says the County Attorney’s Office that handled the case. They did have to defend themselves against a civil case filed by the victim’s daughter, which was settled before heading to court.  The backup driver may still have criminal charges pending.

Ultimately, this is a case with no clear liability. It appears that all 3 parties have some culpability in the accident, and with Virginia’s doctrine of “contributory negligence” it would be an interesting case for a Virginia personal injury attorney to take to court. Most states, like Arizona, have abolished contributory negligence and instead favor “comparative negligence.”

Contributory negligence is when the plaintiff is considered to have contributed even 1% to their injury, and is therefore unable to obtain any settlement against the defendant. Comparative negligence means that the jury will determine the percentage of fault for both parties, and decide the recovery based on that percentage. Obviously, this makes a big difference in a case like this where multiple parties may be found to have some level of fault.

Uber’s driverless cars are already back on the road, and we are no closer to an answer about their liability in an accident. Personal injury attorneys around the country will be keeping an eye on cases like this as these cars become more common on the roads around us.