Who Is Responsible for the Death of Elaine Hertzberg?

Public Domain. Walkway where Elaine Hertzberg was killed/ NTSA

Was it the Uber car, the safety driver, the victim, or the traffic engineers who designed that road?

The National Transportation Safety Board has released reports on the death of Elaine Hertzberg, who was hit by an Uber autonomous Volvo whose safety driver was watching "the View" instead of the road. The car detected Hertzberg when there was lots of time to stop but didn't know what to do; according to the report,

Although the ADS [Automated Driving System] sensed the pedestrian nearly 6 seconds before the impact, the system never classified her as a pedestrian – or predicted correctly her goal as a a jaywalking pedestrian or a cyclist- because he was crossing the N. Mill Avenue at a location without a crosswalk; the system design did not include a consideration for jaywalking pedestrians.
Car detected Hertzberg and did nothing

NTSB/ Car detected Hertzberg and did nothing/Public Domain

The ADS got confused and changed its mind a couple of times between vehicle, bicycle, or another object, and couldn't predict the path it was taking.

The NTSB has not assigned blame for the crash; that comes in a report on the 19th of November. Most people are blaming Uber, which says it regrets the event. The County says they are considering charging the safety driver, who should have been watching the view out his window instead of The View on his phone. Last year the Tempe police department blamed the victim for not walking to the crosswalk and I wondered at the time, "I mean, what's a poor self-driving car supposed to do when a 49-year-old woman pushing a bike just jumps out in front of you? Probably demand more anti-jaywalking laws and fences on roads."

Aerial view of crash site

NTSB/ Aerial view of crash site/Public Domain

But I keep looking at the photos and the drawings, and wonder if they shouldn't be charging the highway department and the engineers who designed the highway where Elaine Hertzberg was hit. I noted last year that Uber's fatal crash shows we should fix our cities, not our cars. Alissa Walker wrote in Curbed, "Experts have long attributed the state’s high rate of pedestrian deaths to exceptionally wide streets that are engineered to move cars fast and do not provide adequate safety infrastructure for people who are on foot or bike. The fast movement of cars is what kills pedestrians." But this road is particularly bad, and there are some things that are just weird.

There is also the question of calling the victim a 'jaywalker.' The NTSB keeps calling Hertzberg a jaywalking pedestrian, but what is that? There is no mention of jaywalking in Arizona legislation because it is not a legal term; as Tom Vanderbilt explains, "Originally an insult against bumptious 'jays' from the country who ineptly gamboled on city sidewalks... it’s also used to shift blame entirely to the pedestrian when drivers may have had what’s called, in legal parlance, 'contributory negligence.'"

Bloomberg, in its coverage, also picks up on the theme, titling its story Self-Driving Uber in Crash Wasn’t Programmed to Spot Jaywalkers.

The NTSB using the term at all implies that Hertzberg was doing something wrong. According to Arizona Bike Law, in Tempe the law suggests that she was:

(b) Every pedestrian crossing a roadway outside of the central business district at any point other than within a marked or unmarked crosswalk shall yield the right-of-way to all vehicles upon the roadway.
(c) No pedestrian shall cross a roadway where signs or traffic control signals prohibit such crossing.
A useful sign

NTSA/ a useful sign at the end of a wide pedestrian walkway/Public Domain

And indeed, there was a sign, facing the roadway instead of the fancy brick pedestrian walkway to nowhere that Hertzberg was using before she crossed the road. There is a whole big X of walkways leading nowhere. Who does it serve? Why is it there? Does it make any sense to have a walkway that takes you into the road? What were they thinking?

signs have been added

NTSB/ signs added after crash tell a story/Public Domain

The city has now added a pile of signs where Hertzberg was killed, which kind of suggests that it was inadequately marked. They have not added lights or a crosswalk, still expecting people to walk to the corner. They have not torn up the silly X of pavement that leads pedestrians to the street.

Landscape design

NTSB/ Landscape design of walkways leading nowhere/Public Domain

I suspect that when the report comes out on the 19th there will be lots of blame to spread around, from UBER to the safety driver to Elaine Hertzberg. But the engineers and landscape architects who designed that stupid road, with that big stupid X of landscaping leading Hertzberg to her death, deserve a whole lot of blame, too.