Campion v. City of Tucson

• Docket Number: 2 CA-CV 2022-0046
• Decision Date: 11 September 2023
• Citation: Campion v. City of Tucson, 105 Arizona Cases Digest 4, 536 P.3d 1232 (Ariz. App. 2023)
• Parties: Amanda CAMPION and James Campion, as Co-Guardians of Eli Mentzer, a Minor, Plaintiffs/Appellants, v. CITY OF TUCSON, a Body Politic, Defendant/Appellee.
• Court: Arizona Court of Appeals

105 Arizona Cases Digest 4

536 P.3d 1232

Amanda CAMPION and James Campion, as Co-Guardians of Eli Mentzer, a Minor, Plaintiffs/Appellants,

v.CITY OF TUCSON, a Body Politic, Defendant/Appellee.

No. 2 CA-CV 2022-0046

Court of Appeals of Arizona, Division 2.

Filed September 11, 2023

McNamara Law Firm PLLC, Tucson, By Michael F. McNamara and Claire E. McNamara, Counsel for Plaintiffs/Appellants

Udall Law Firm LLP, Tucson, By Cassandra Meynard and Jeanna M. W. Chandler, Counsel for Defendant/Appellee

Kristin K. Mayes, Arizona Attorney General, By Dwayne E. Ross, Christopher B. Davis, Lindsay M. Hughes, and, Rebecca A. Banes, Assistant Attorneys General, Phoenix, Counsel for Amicus Curiae State of Arizona

Presiding Judge Eppichauthored the opinion of the Court, in which Chief Judge Vásquez and Judge Gard concurred.

EPPICH, Presiding Judge:

¶1Plaintiffs Amanda and James Campion("the Campions") appeal from a final judgment in favor of defendant the City of Tucson("the City") after a jury determined the City was immune under A.R.S. § 12-820.03 from the Campions’ wrongful death claim.For the reasons stated below, we affirm.

Factual and Procedural Background

¶2 In 2017, Anna Mentzer and her son, Ethan, were struck and killed by a car while using a crosswalk in the City of Tucson.In 2018, the Campions, as guardians and conservators of Eli, Anna's surviving son, filed suit against the City for the wrongful death of Anna under A.R.S. § 12-611.The Campions alleged the City had acted negligently when, in 2002, it replaced a monitored school crosswalk with an unmanned pedestrian crosswalk at the incident location and maintained it as such thereafter.They claimed the City failed to perform a traffic study before the replacement, and the resulting change created an unreasonably dangerous condition that caused Anna's death.

¶3 The City moved for summary judgment, claiming immunity under § 12-820.03, and the Campions filed a countermotion, arguing immunity did not apply.The trial court denied both motions and, after additional briefing, ordered that the issue of immunity would be tried separately from the issues of liability and damages.At the trial on immunity, the jury determined the City was immune from the Campions’ claims, and the court entered a final judgment in favor of the City.The Campions moved for new trial under Rule 59, Ariz. R. Civ. P., alleging numerous errors.The court denied the motion, and this appeal followed.We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),12-2101(A)(1),12-2102(B).

I.Denial of Summary Judgment

¶4 The Campions argue the trial court improperly denied their motion for partial summary judgment on the issue of whether the City was entitled to a trial on its affirmative defense under § 12-820.03(A).The City contends the ruling is not appealable.We agree.

¶5 On appeal, the Campions argue that the trial court erred by misapplying § 12-820.03(A), which provides immunity to a public entity for injuries "arising out of a plan or design for construction or maintenance of or improvement to transportation facilities."The statute requires the proponent of the defense to prove, in part, that the "plan or design is prepared in conformance with generally accepted engineering or design standards in effect at the time."§ 12-820.03(A).The Campions argue the standards with which the City claimed the crosswalk design complied are not "generally accepted engineering or design standards" as a matter of law.Id.

¶6 A denial of a motion for summary judgment is generally not reviewable on appeal from a final judgment unless it is based on a purely legal issue or the issue is preserved by moving for judgment as a matter of law under Rule 50, Ariz. R. Civ. P., or by making some other post-trial motion.Ryan v. Napier , 245 Ariz. 54, ¶ 14, 425 P.3d 230(2018);John C. Lincoln Hosp. & Health Corp. v. Maricopa County , 208 Ariz. 532, ¶ 19, 96 P.3d 530(App.2004);see alsoSorensen v. Farmers Ins. Co. of Ariz. , 191 Ariz. 464, 465, 957 P.2d 1007, 1008(App.1997)(denial of summary judgment is an intermediate order only deciding case should go to trial).A purely legal issue is one which does not require determination of any predicate facts.John C. Lincoln , 208 Ariz. 532, n.5, 96 P.3d 530, n.5.

¶7 In this case, the City presented an expert's declaration that the Manual on Uniform Traffic Control Devices (MUTCD), which is published by the Federal Highway Administration, provides "Standards, Guidelines, Options and Support materials for the design and application ... of traffic control devices."The declaration further stated that "[t]he design for the [subject crosswalk] ..., including traffic signs and pavement markings, met or exceeded the traffic engineering and MUTCD Standards in effect at the time."The Campions countered by presenting expert opinions that the subject crosswalk violated not only the MUTCD, but other City policies as well.

¶8 As such, the facts regarding which engineering and design standards applied and whether the subject crosswalk conformed to those standards were disputed, and the court's denial of the partial motion for summary judgment reflected that factual dispute.It follows that the ruling was not based on a purely legal issue.SeeJohn C. Lincoln , 208 Ariz. 532, ¶ 19, 96 P.3d 530(issue not purely legal where denial of summary judgment is based on existence of material factual disputes);Sorensen , 191 Ariz. at 466, 957 P.2d at 1009(summary judgment denial not reviewable where issue before court involved mixed question of law and fact).

¶9 The Campions raised the immunity issue again in their Rule 59motion for a new trial—and again on appeal—but they only argue that the trial court erred by denying their pretrial motion for summary judgment and that the § 12-820.03 defense should never have proceeded to trial.While our decision in John C. Lincoln implies an issue may be preserved by a post-trial motion other than a Rule 50motion for judgment as a matter of law,¹we find no authority suggesting a motion for new trial preserves the issue of whether the court improperly denied a pretrial motion for summary judgment.208 Ariz. 532, ¶ 19, 96 P.3d 530.Therefore, we decline to review the issue.

II.Bifurcated Trial

¶10 The Campions argue that the trial court improperly held a trial solely on the § 12-820.03 affirmative defense, before and separate from a trial on liability and damages.They contend the language of § 12-820.03(B) requires a trial on both the affirmative defense and liability together with a separate bifurcated trial on damages only.In the alternative, they argue the court abused its discretion under Rule 42, Ariz. R. Civ. P., by bifurcating the trial.

¶11 At the outset, the Campions have not adequately shown that they were prejudiced by the bifurcated proceeding.SeeCreach v. Angulo , 189 Ariz. 212, 214, 941 P.2d 224, 226(1997)(error must be prejudicial to substantial rights of party to warrant reversal);Joshua J. v. Ariz. Dep't of Econ. Sec. , 230 Ariz. 417, ¶ 22, 286 P.3d 166(App.2012)("We will not reverse for a procedural error absent a showing of prejudice.").The Campions state that the bifurcated trial "limit[ed] their access to a jury trial and presentation of their case" and "forced [them] to only present evidence as the court deemed relevant to the affirmative defense."However, the Campions have not cited any legal authority to support their assertion that their access to a jury trial was improperly limited by bifurcation.And the Campions have not shown prejudice by bifurcation, given their prejudice arguments are based on unrelated evidentiary rulings.SeeCreach , 189 Ariz. at 214, 941 P.2d at 226.

¶12 Turning to whether the trial court properly bifurcated the trial under § 12-820.03(B), we review issues of statutory interpretation de novo, Molera v. Reagan , 245 Ariz. 291, ¶ 8, 428 P.3d 490(2018), and a decision to bifurcate for an abuse of discretion, Romero v. Sw. Ambulance , 211 Ariz. 200, ¶ 5, 119 P.3d 467(App.2005).

¶13 The goal of statutory interpretation is to "effectuate legislative intent."Ariz. Chapter of the Associated Gen. Contractors v. City of Phoenix , 247 Ariz. 45, ¶ 7, 445 P.3d 2(2019).In doing so, we first look to the statute's plain language, giving the words their ordinary meaning.Secure Ventures, LLC v. Gerlach , 249 Ariz. 97, ¶ 5, 466 P.3d 874(App.2020).If there is only one reasonable interpretation, we apply that interpretation, but if the language is ambiguous, we consider such factors as "the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose."Glazer v. State , 237 Ariz. 160, ¶ 12, 347 P.3d 1141(2015)(quotingWyatt v. Wehmueller , 167 Ariz. 281, 284, 806 P.2d 870, 873(1991) ).

¶14Section 12-820.03(B) provides that "[i]f a genuine issue of material fact exists as to whether the public entity or public employee has met the requirements of subsection A of this section, the issue shall be resolved by a trial before and separate and apart from a trial on damages."The Campions argue that because the statute only mentions "trial on damages,"the legislature has directed the issue of damages, but not liability, be bifurcated.However, their argument is premised on a reading of the statute which would require the issue of liability to be tried at the same time as the affirmative defense.The statute's plain language does not mandate that result.

¶15The statute is silent as to when the issue of liability is to be tried.The only language limiting the scope of the issues to be adjudicated in either trial is that the enumerated issues—immunity and damages—are to be adjudicated in separate trials.Seeid.;see alsoCity of Tempe v. Fleming , 168 Ariz. 454, 457, 815 P.2d 1, 4(App.1991)(court will not read into statute something not within manifest intent of legislature as indicated by statute itself);City of...