DIANA GLAZER, THE SURVIVING SPOUSE OF MICHAEL GLAZER, DECEASED, ON HER OWN BEHALF AND AS STATUTORY TRUSTEE FOR LINDSAY GLAZER AND DAVID GLAZER, SURVIVING CHILDREN OF MICHAEL GLAZER; DIANA GLAZER, AS SURVIVING PARENT OF SYDNEY GLAZER, DECEASED, Plaintiff/Appellee,
STATE OF ARIZONA, A GOVERNMENT ENTITY, Defendant/Appellant
Appeal from the Superior Court in Maricopa County. The Honorable John Christian Rea, Judge. No. CV2009-001261. Opinion of the Court of Appeals, Division One. 234 Ariz. 305, 321 P.3d 470 (2014) .
Appeal from the Superior Court in Maricopa County, AFFIRMED. Opinion of the Court of Appeals, Division One, VACATED IN PART.
For Diana Glazer: John P. Leader, The Leader Law Firm, Tucson; Christopher J. Zachar, The Zachar Law Firm, P.C., Phoenix; and Timothy J. Aiken (argued), Aiken & Scoptur, P.C., Milwaukee, WI.
For State of Arizona: Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Daniel P. Schaack, Fred Zeder (argued), Assistant Attorneys General, Phoenix.
For Pima County, Amicus Curiae: Barbara LaWall, Pima County Attorney, Dennis C. Bastron, Deputy County Attorney, Civil Division, Tucson.
For Apache, Cochise, Gila, Graham, Greenlee, La Paz, Maricopa, Mohave, Navajo, Pinal, Santa Cruz, Yavapai, and Yuma Counties, Amici Curiae: Eileen Dennis GilBride, Jennifer B. Anderson, Jones, Skelton & Hochuli, P.L.C., Phoenix.
For League of Arizona Cities and Towns, Amicus Curiae: Kathleen L. Wieneke and Nicholas D. Acedo, Struck Wieneke & Love, P.L.C., Chandler.
For The Arizona Association for Justice/Arizona Trial Lawyers Association, Amicus Curiae: Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson, and David L. Abney, Knapp & Roberts, P.C., Scottsdale.
For Vicki Laffoon, et al, Amicus Curiae: John C. Lemaster and Naomi Thurston, Ryley Carlock & Applewhite, Phoenix; W. Raymond Johnson III, Johnson Law Group, PLC, Mesa, and Lynn Eric Goar, Law Office of Lynn Eric Goar, PC, Tucson.
JUSTICE TIMMER authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER, JUSTICES BERCH and BRUTINEL joined, and CHIEF JUSTICE BALES dissented in part and concurred in the result.
[¶1] Section 12-820.03, A.R.S., provides public entities a " state of the art" affirmative defense against claims for injuries arising out of a plan or design for construction of a roadway. To establish the defense, the public entity must show that the plan or design, when created, conformed to generally accepted engineering or design standards and that warnings of any unreasonably dangerous hazards were given that were adequate to permit the public to take suitable precautions. We today hold that the affirmative defense remains available even if material changes to travel have rendered the roadway substandard. Because the State failed to establish every element of the defense in this case, however, the trial court did not err by denying the State's motions for judgment as a matter of law.
[¶2] In 2007, Melissa Sumpter was driving in the mid-afternoon behind a semi-truck on an eastbound, two-lane stretch of Interstate 10 (" I-10" ) southeast of Phoenix. As Sumpter started to pass the truck, it began to move into her lane, causing her to swerve to the left to avoid a collision. She lost control of her vehicle, which crossed through the eighty-four foot dirt median into the westbound lanes, and crashed head-on into Diana Glazer's vehicle, killing Glazer's husband and daughter and seriously injuring Glazer.
[¶3] Glazer sued the State for failing to install a median barrier in the area of the accident. The State named as non-parties at fault the unidentified truck driver and Sumpter.
[¶4] The State moved for summary judgment based on A.R.S. § 12-820.03. It argued that because a median barrier was not required when I-10 was designed and constructed in 1967 and the Glazers' injuries arose from the absence of a barrier, § 12-820.03 relieved the State from liability. Although it presented evidence that the roadway was not unreasonably dangerous, the State did not address § 12-820.03's warning requirement. Opposing the motion, Glazer argued that § 12-820.03 did not apply to her claim, and she presented opinion evidence that the absence of a median barrier rendered this stretch of I-10 unreasonably dangerous.
[¶5] The trial court ruled that § 12-820.03 did not apply because Glazer did not allege that I-10 was unsafe when it was designed but, rather, asserted that the circumstances in 2007 rendered this portion of the roadway unreasonably unsafe. According to the court, § 12-820.03 " [does not] grant the State immunity to properly design a highway in 1967 and then ignore the developments of 40 years in the speed, size, and volume of traffic that might render the highway no longer reasonably safe." The court therefore denied the motion.
[¶6] At trial, Glazer's expert witness opined that the State should have installed barriers by 2002 due to the number of cross-median accidents that likely occurred in the accident area before 2000. He surmised that such accidents occurred because the roadway was " ultra-hazardous" by 2006 due to the increases in traffic volume, truck traffic, and speed limit since 1967 and because ten cross-median accidents occurred from 2003 to 2007 in the eight-mile stretch of I-10 surrounding the accident site. The State countered with evidence that it complied with nationwide standards by monitoring I-10 in one-mile segments, that no cross-median accidents had occurred in the segments immediately surrounding the accident site during the preceding five years, and that the site was not in a high-accident location.
[¶7] At the conclusion of Glazer's case-in-chief, the court denied the State's motion for judgment as a matter of law (" JMOL" ), which again asserted § 12-820.03's affirmative
defense. See Ariz. R. Civ. P. 50(a). The jury found in favor of Glazer, awarded $7.8 million in damages, and assigned 100 percent of fault to the State and none to Sumpter or the truck driver. The court denied the State's post-trial motions, including a renewed motion for JMOL asserting the § 12-820.03 defense. See id. 50(b).
[¶8] The court of appeals affirmed. Glazer v. State, 234 Ariz. 305, 314 ¶ 25, 321 P.3d 470, 479 (App. 2014). It held that § 12-820.03 was inapplicable because Glazer's claim did not arise out of a plan or design used in 1967, but instead arose from the State's " fail[ure] to install a median barrier on I-10 given substantial, material changes within a decade (or less) before the 2007 crash." Id. at 314 ¶ 25 n.5, 321 P.3d at 479 n.5.
[¶9] We granted review because the meaning of § 12-820.03 is a matter of first impression for this Court and of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3) of the ...