The family of the woman killed by an autonomous Uber vehicle last year has filed a $10 million claim against Tempe, stating the city created a dangerous situation by paving a median where people were not supposed to cross the road.

Elaine Herzberg, a 49-year-old woman who was homeless, was the first person in the country to be hit and killed by a self-driving car. A Volvo sport-utility vehicle operated by Uber ran into her on March 18 as she crossed Mill Avenue outside of a crosswalk.

The claim against Tempe was filed by Skousen, Gulbrandsen & Patience on behalf of Herzberg’s daughter, Christine Wood, and Herzberg’s husband, Rolf Ziemann.

The law firm is asking for $5 million for each of the survivors.

Officials at the law firm did not respond to a request for comment.

Ziemann and Wood could not be reached.

The city does not comment on pending litigation, said Nikki Ripley, a city spokeswoman. Ripley confirmed that Tempe had not responded to the claim.

At issue: Brick pathway in median

The notice says the city is liable for the accident because the median on Mill Avenue where the accident occurred “has a brick pathway cutting through the desert landscaping that is clearly designed to accommodate people to cross at the site of the accident.”

The city of Tempe tore out that X-shaped brick path in the median south of Curry Road in the fall, city spokeswoman Nikki Ripley confirmed. The brick walkway was replaced with rock landscaping and plants.

The change was made about the time the city was hit with the claim.

The Arizona Republic reported after the fatal accident that the area had signs telling people to use the crosswalk, but also the brick pathway that potentially could accommodate jaywalkers.


Rafaela Vasquez, the driver behind the wheel of the vehicle while it was in auto-drive mode, was watching “The Voice” via a streaming service in the minutes leading up to the crash, according to a police report.

Less than two weeks after the accident, the law firm Bellah Perez announced it had reached a settlement with Uber in the case for Wood. Reuters reported that the resolution also included Ziemann. Details were not disclosed.

Another firm, Gallagher and Kennedy, said it was representing other family members.


Attorneys weigh in: This case is weak

Two legal experts said it’s unlikely the city would be found liable for the high dollar amount requested in the claim.

Logan Elia, an attorney with the Rose Law Group, said the claim is “not a very good one.”

“Generally, the city is not obligated to warn people of open and obvious dangers,” Elia said. “The obligation is in the other direction. People are obligated not to cross the street outside of crosswalks.”

The claim also asserts that the city failed to provide a crosswalk at the site of the brick path.

“There’s nothing in the report as I read it that says the accident would have been avoided had there been a painted crosswalk,” Elia said. “I don’t think there’s much reason to suspect the city is going to shell out $10 million to settle this claim based on what was submitted.”

James Arrowood, a lawyer who specializes in motor-vehicle and product-liability issues and teaches the State Bar of Arizona course on driverless cars, also thought the case was weak.

He said it’s possible any defendant, the city included, might settle a case rather than pay hundreds of thousands of dollars to hire experts and go to trial. But he also doesn’t expect the city to pay the amount requested.

“That number is for purposes of intimidation and getting press,” Arrowood said. “If those things succeed, they try to squeeze out a higher number on the settlement value. Would they settle for $50,000 each? If so, you as counsel might advise your client to get out while you can.”

He said such cases can be tricky.

“There are often a number of facts known to both sides, or one side or the other, the public does not know,” he said.


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