Public officials and experts wasted little time rushing to blame 49-year-old pedestrian, Elaine Herzberg, for her death in front of a self-driving Uber car in Tempe Arizona last month.  Just hours after, Police Sergeant Ron Elcock said at a news conference, “The pedestrian was outside of the crosswalk .. as soon as she walked into the lane of traffic she was struck.”

Tempe Police Chief Sylvia Moir likewise opined to the San Francisco Chronicle, based on a video from the self-driving Volvo, “it’s very clear it would have been difficult to avoid this collision.. based on how she came from the shadows right into the roadway.”   And self-appointed “expert,” James Arrowood, bluntly concluded, “the accident appears to be primarily caused by the pedestrian.”[1]

All are wrong.  Even my simple investigation– from 1,000 miles away using web photos and Google Earth – shows all three to be almost mendaciously inaccurate.

Why did Arrowood, Moir, and Elcock so quickly rush to judgment?  What is their interest in recklessly putting the blame on poor, dead, Elaine Herzberg?  Is it just simple prejudice favoring technology over muscle-powered mobility?

Let’s look at the facts.

The Volvo’s video dashcam shows its route up Mill Avenue in the seconds before it ran over Herzberg.[2] It’s a perfect night, without traffic, and the divided multi-lane roadway is straight, quiet, and unobstructed.  It also shows the point of collision, just a few feet south of the terminating white stripe of a merging bike lane (and next to a pair of sidewalk culverts).

To reporters the next day, Sgt. Elcock appears to have recited facts mostly handed him by others.   Contrary to what he described, the video shows Herzberg had already pushed her bicycle across three lanes of northbound traffic before she was struck by the Uber 2/3 of her way across the fourth and final traffic lane.

What the Volvo video fails to show is any glimpse of Herzberg in the road until the last second.  Based on that, chief of police Moir, and expert Arrowood, opined basically that the Uber wasn’t at fault.  But, neither of these professionals acknowledged the fundamental problem with their evidence- video lighting is only as good as the camera’s capability.  What any video shows, or fails to show, is ENTIRELY a function of lens aperture and light sensitivity.  Drawing broad conclusions, as Moir and Arrowood did on this flimsy evidence, is amateurish.

In fact, days after the crash, two different amateurs filmed the same drive up Mill Avenue at nighttime.  Both show plenty of lighted detail, including pedestrians. [3]

There’s good reason for that.  2018 Google Earth photos reveal two overhead street lamps directly illuminating the point of collision.  One light stands just 50 feet south of the crash, the other only 82 feet. (A third light is in the median).

But there’s other evidence the Volvo video is misleading.  Pavement markings enable a reasonable estimate of the distance from which Herzberg’s reflective sneakers first show up in the Uber video (with the help of Google Earth overhead).[*]  She remains entirely invisible until the Uber is at most about 73 feet away.  But according to the Insurance Institute, on low beam the Volvo’s headlights actually illuminate almost 250 feet ahead. Obviously, the dashcam isn’t telling an honest story.

Another unnoticed set of facts.  Herzberg’s bike, and the Uber, didn’t come to rest until some 150 feet after the point of collision. (See ABC news photo, above, at top).  So the homicidal Volvo, and presumably its hapless victim, traveled at least 2.7 seconds after impact, enough time for even an inattentive driver to react and apply the brakes.  This suggests the self-driving car didn’t brake, even upon impact. It waited for its human driver to do so. [+]

Moir, Arrowood and others criticized Herzberg’s  “jaywalking” (without a crosswalk) as the main cause of her death.  But I’ve yet to see anyone take close account of the configuration of the street, median and lighting.  And I’ve seen nobody mention Arizona law, or talk about possible municipal culpability.

Consider “proximate cause,” the legal doctrine which sorts out blame when there’s arguably multiple causes of an accident.  In Arizona,

“The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred. … An intervening cause is an independent cause that intervenes between defendant’s original negligent act and the final result and is necessary in bringing about that result.” [5]

So, did Elaine Herzberg’s alleged “jaywalking” proximately cause her death. As a starting point, Arizona’s statutory “basic rule” demands,

“Notwithstanding the provisions of this chapter every driver of a vehicle shall: .. Exercise due care to avoid colliding with any pedestrian on any roadway.” [6]

The statute makes it clear– despite all the other traffic rules in Arizona statutes, a motorist always retains the obligation to exercise “due care” for pedestrians “on any roadway.”

When the Uber struck and killed her, Herzberg was crossing Mill Avenue about 118 yards south of the only marked crosswalk.   The next crosswalk was over half a mile farther south on the far side of the Salt River.  Under Arizona statutes, it’s up to a municipality to set the rules for crosswalks . [7]  In turn, the City of Tempe wrote its ordinances to say,

“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.” [8]

In short, Herzberg wasn’t wrong to cross the road at this location, so long as she yielded right of way to vehicles.

But Arizona law is malleable in determining what constitutes a right of way, and when it must be yielded.  For example, Arizona courts have declared that the duty to “yield right of way” may not  apply where the party otherwise responsible to yield was first to occupy the road. [9]

In this case, Herzberg had crossed 3 lanes of Mill Avenue before she was struck 2/3 of the way across the 4th.  At the point of impact, she had already traversed 44 of the 53 feet of the road’s width.

Under the circumstances, did she fail to “yield,” to a car she was entitled to believe was piloted by a reasonable person exercising their duty of “due care” for pedestrians?  There’s surely an argument that she had already yielded over 80% of the empty roadway to the Uber.  She can hardly bear the responsibility for knowing she was being approached at 56 feet per second by a 2-ton robot which had no capacity to recognize and utilize the empty three lanes of traffic she had already yielded to it.

Based on Herzberg’s walking speed (about 4.6 ft/sec.) she would have stepped off the median 10 seconds before she was hit.  When she left the median, the Uber would have been 557 feet away (at 38 mph).  That gave the Uber one sixth of a minute to “see” and avoid her, but it didn’t even apply the brakes.

In my research, no one’s mentioned that at the instant she was hit, Herzberg was about to step into a designated bike lane with a sign, 55 feet away, instructing drivers to “Yield to Bikes.”  Do Uber auto-drive cars read street signs?

Now, consider the City.  The cactus-adorned median at N. Mill extends all the way from Curry Road to the Salt River.  Where Herzberg likely crossed it, the median is 65 feet wide.  At some point, the City of Tempe built a huge, X-shaped, cobblestone walkway there, creating a convenient passage across the median.  The City marked the path with white lines and installed a tall street light at the axis of the X. (See Accident Site photo, above). The Uber video shows this light, off to the left of the two which directly illuminate the accident.

However, having spent tens of thousands of dollars constructing an inviting pedestrian corridor, the City then erected small signs arguably warning pedestrians not to use it for its apparent purpose.  But, combining the cryptic, diminutive “no pedestrian” signs, with the colossal, painted brick walkway, a reasonable pedestrian might construe the signs as inviting them to use the walkway, but avoid the planted cactus portions of the median.  In other words, one could misunderstand the words “Use Crosswalk” as referring to the white-lined cobblestone walk, rather than the Curry Road crosswalk, over a hundred yards to the north.

In a head to head contest about who was most negligent, a final factor figures in.  In the last second before she was hit, Elaine Herzberg turned her face to the on-rushing car, then turned back, and fruitlessly attempted to get out of the way.  She nearly succeeded, because the Volvo struck her on the passenger side.  By contrast, neither the Uber or its driver saw her, braked, or took any other evasive action.

In the end, did Elaine Herzberg proximately cause her own death?  Or did the obvious inability of the Uber to sense and obey “the basic rule” intervene as the dominant cause?  How much culpability attaches to the City of Tempe for its construction of the road and median at Mill Ave?

These questions must finally be answered by juries, not blog authors. But neither should they be the province of premature speculation on bad facts by police, city officials, and experts who make their living specializing in self-driving vehicles.

 

NOTES————————
[1] “What went wrong with Uber’s Volvo in fatal crash? Experts shocked by technology failure.”  Arizona Republic. https://www.azcentral.com/story/money/business/tech/2018/03/22/what-went-wrong-uber-volvo-fatal-crash-tempe-technology-failure/446407002/
[2] Guardian Newspaper, Tempe Uber video, March 18, 2018, https://www.youtube.com/watch?v=RASBcc4yOOo
[3]“Police chief said Uber victim “came from the shadows”—don’t believe it.” ARS Technica, 3/23/2018; https://arstechnica.com/cars/2018/03/police-chief-said-uber-victim-came-from-the-shadows-don’t-believe-it/
[*] The Google Earth photos are all dated July, 2017.  Close comparison of pavement markings with accident night photos, March 18, discloses that the paint has NOT been updated since the Google photos were taken.
[4] “Driving at Night Can Be Deadly,” NHTSA,  https://www.nhtsa.gov/DOT/NHTSA/Traffic%20Injury%20Control/Articles/Associated%20Files/deadly.pdf

[*] According to brakingdistances.com, from 38 mph the Volvo should have been able to stop within 70 ft. from the moment of applying the brakes (which it should do instantly on impact).
[5] Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (Ariz., 1990).
[6] Ariz. Stat. § 28-794. Drivers to exercise due care [emphasis added].
[7] Ariz. Stat. § 28-791 (B).
[8] Tempe Code § 19-151 (b) – Crossing a roadway.
[9] Thompson v. Corey L. Pickens & Domino’s Pizza, LLC (Ariz. App., 2015) memo  op.; Jarrell v. Deffendall (Ariz. App., 2015) (pedestrian with statutory right of way must still exercise due care)

(c) Roy H. Andes, 2018