Arizona Governor Doug Ducey failed to keep roads safe with his free-wheeling autonomous vehicle rules, says a $10 million claim against the state by the family of the woman killed by an Uber self-driving car last March.
The claim was filed on September 18, 2018, but released this week to Phoenix New Times under public records law.
Elaine Herzberg, a sometimes-homeless, 49-year-old woman with a drug problem, died on March 18 after an Uber Volvo XC90 in autonomous mode slammed into her at about 10 p.m. on Mill Avenue just south of Curry Road.
Lawyer Richard Gulbrandsen, who prepared the notice of claim on behalf of Herzberg’s husband, Rolf Ziemann, and her daughter, Christine Wood, declined comment on Wednesday. Ziemann and Wood, who are each demanding $5 million from the state, settled with Uber for an unreleased amount of money last year.
The state claim is similar to a $10 million claim filed in September against the city of Tempe. But while that demand focused on the alleged hazards of a brick walkway that Herzberg had used before her fateful trip across the street, Ziemann and Wood accuse the state of a much broader scope of liability.
Besides the state and Ducey, Department of Transportation Director John Halikowski is also named as a defendant. The governor’s office didn’t respond to a request for comment about the claim. (UPDATE: The governor’s office said later it would not respond to pending litigation, but didn’t know if a lawsuit has been filed.)
After quoting legal precedent about the state’s responsibility to keep roadways “reasonably safe” for travelers, the claim says the state has “failed to make roadways safe, allowing autonomous vehicles to operate on public roadways in an unsafe manner.”
The state’s oversight of autonomous vehicles was negligent, it states, adding that Ducey’s 2015 executive order facilitating the testing of self-driving vehicles was created “negligently and without sufficient investigation into the safety of Uber’s autonomous vehicles. Any oversight provided by a committed, ADOT, or DPS, was wholly insufficient, and placed an unreasonably high risk of harm to the citizens of Arizona.”
The claim goes on to quote Ducey’s 2016 invitation to Uber, in which the governor quipped that “California put the brakes on innovation and change,” but he wouldn’t.
“This rush to be first in the ‘tech boom’ era made Arizona’s roadways unreasonably dangerous,” the claim states.
New Times made a similar argument that Ducey was at least partially responsible for Herzberg’s death in the April 12 cover story, “Ducey’s Drive-By: How Arizona Governor Helped Cause Uber’s Fatal Self-Driving Car Crash.”
Though Tempe didn’t respond to its claim, the city proactively ripped up the brick walkway in question and replaced it last year with trees, other ground cover, and decomposed granite.
Yavapai County Attorney Sheila Polk is still deciding whether to charge the Uber backup driver, Rafaela Vasquez, with a crime for failing to avoid Herzberg, who was not in a crosswalk. Phone records show Vasquez had been streaming a TV show in the seconds before the crash, and the Volvo’s interior video shows she wasn’t looking at the road before the impact.