Report says Uber driver was watching TV show before fatal Tempe accident

PHOENIX — A comprehensive police report of the self-driving Uber accident that killed a pedestrian in Tempe said the crash was avoidable and concluded the driver had been watching video of a talent show on a cellphone.

“This crash would not have occurred if (Rafaela) Vasquez would have been monitoring the vehicle and roadway conditions and was not distracted,” the Tempe Police report read.

Data from streaming-services company Hulu obtained through a search warrant showed Vasquez’s phone was playing the singing competition “The Voice” at 9:59 p.m., about the same time as the accident.

Elaine Herzberg, 49, died March 18 around 10 p.m. when the Volvo XC90, in autonomous mode with Vasquez behind the wheel, struck her on Mill Avenue near Curry Road.

“Before impact, Rafael is looking at the area of her right knee for a notable length of time. Before looking up, her eyes are focused on the area of her right knee. When played at normal speed and measured with a stopwatch, her eyes are averted from the roadway for a total continuous length of time of 5.3 seconds.

“When using the built-in timer on the video player and moving the video frame by frame, the video player shows that her eyes were averted from the roadway for 4.2 seconds. When she looks back up at the roadway, the vehicle is 0.50 seconds from impact.”

Video released after the accident showed Vasquez looking down just before the SUV hit Herzberg.

The National Transportation Safety Board, in a preliminary report issued in May, said the autonomous driving system spotted Herzberg about six seconds before hitting her, but did not stop because the system used to automatically apply brakes in potentially dangerous situations had been disabled.

Analysis of dashcam video, police said, concluded that Vasquez looked down for 31 percent of the nearly 22 minutes she was in the driver’s seat before the crash.

The car also was going too fast, the 300-page report said.

The case was sent to the Maricopa County Attorney’s Office. Bill Montgomery’s office then asked Yavapai County Attorney’s Office to take over, citing a prior relationship with Uber on a promotional campaign as a conflict of interest.

An Uber spokeswoman said in a prepared statement Friday morning that the company is cooperating with investigations while it does an internal safety review. “We have a strict policy prohibiting mobile device usage for anyone operating our self-driving vehicles. We plan to share more on the changes we’ll make to our program soon,” the statement said.

Use of a mobile device while an autonomous vehicle is moving is a fireable offense, and “this is emphasized on an ongoing basis,” the statement said.

After the crash, the ride-hailing company said it did a top-to-bottom safety evaluation, reviewing internal processes and safety culture. Uber also said it brought in former transportation safety board chairman Christopher Hart to advise the company on safety.

Both Vasquez and Uber could still face civil liability in the case, Uber for potentially negligent hiring, training and supervision, said Bryant Walker Smith, a University of South Carolina law professor who closely follows autonomous vehicles.

Vasquez could be charged criminally, and if there’s evidence that Uber or its employees acted recklessly, then charges against them are possible, Smith said. But charges against the company are not likely, he added.

“This should not have happened in so many ways and on so many levels,” Smith said. “This report, if true, makes things worse. And obviously it would not look good to a jury.”

Uber settled quickly with some of Herzberg’s family members but others have retained legal counsel.

The Associated Press contributed to this report.

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