Glazer v. State

• Decision Date: 08 May 2015
• Docket Number: No. CV–14–0123–PR.,CV–14–0123–PR.
• Citation: 712 Ariz. Adv. Rep. 16,347 P.3d 1141,237 Ariz. 160
• Parties: 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, v. STATE of Arizona, a government entity, Defendant/Appellant.
• Court: Arizona Supreme Court

237 Ariz. 160

347 P.3d 1141

712 Ariz. Adv. Rep. 16

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

v.STATE of Arizona, a government entity, Defendant/Appellant.

No. CV–14–0123–PR.

Supreme Court of Arizona.

May 8, 2015.

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, Attorneys for Diana Glazer.

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Daniel P. Schaack, Fred Zeder (argued), Assistant Attorneys General, Phoenix, Attorneys for State of Arizona.

Barbara LaWall, Pima County Attorney, Dennis C. Bastron, Deputy County Attorney, Civil Division, Tucson, Attorneys for Amicus Curiae Pima County.

Eileen Dennis GilBride, Jennifer B. Anderson, Jones, Skelton & Hochuli, P.L.C., Phoenix, Attorneys for Amici Curiae Apache, Cochise, Gila, Graham, Greenlee, La Paz, Maricopa, Mohave, Navajo, Pinal, Santa Cruz, Yavapai, and Yuma Counties.

Kathleen L. Wieneke and Nicholas D. Acedo, Struck Wieneke & Love, P.L.C., Chandler, Attorneys for Amicus Curiae League of Arizona Cities and Towns.

Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson, and David L. Abney, Knapp & Roberts, P.C., Scottsdale, Attorneys for Amicus Curiae The Arizona Association for Justice/Arizona Trial Lawyers Association.

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, Attorneys for Amicus Curiae Vicki Laffoon, et al.

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.

Opinion

Justice TIMMER, opinion of the Court.

¶ 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.

I. BACKGROUND ¹

¶ 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 Arizona Constitution and A.R.S. § 12–120.24.

II. DISCUSSION

A.

¶ 10 This Court abolished the doctrine of sovereign immunity for tort liability in 1963, concluding that the government and its employees should generally be responsible for injuries they negligently cause. Stone v. Ariz. Highway Comm'n, 93 Ariz. 384, 392, 381 P.2d 107, 112 (1963) (“[T]he rule is liability and immunity is the exception.”). But determining when the government should be immunized from liability proved problematic in ensuing cases, and we invited the legislature to address the issue. See Ryan v. State, 134 Ariz. 308, 310, 656 P.2d 597, 599 (1982), superseded by statute as stated in Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203 ¶ 27, 16 P.3d 757, 764 (2001).

¶ 11 The legislature responded in 1984 by enacting the Actions Against Public Entities or Public Employees Act (the “Act”), which specifies circumstances in which governmental entities and public employees are immune from tort liability. 1984 Ariz. Sess. Laws, ch. 285 (2d Reg. Sess.) (codified at A.R.S. §§ 12–820 to –826). The Act leaves intact the common-law rule that the government is liable for its tortious conduct unless immunity applies. Pritchard v. State, 163 Ariz. 427, 431, 788 P.2d 1178, 1182 (1990) ; see also 1984 Ariz. Sess. Laws, ch. 285, § 1(A) (declaring as public policy that “public entities are liable for acts and omissions of employees in accordance with the statutes and common law of this state”).

¶ 12 We review the interpretation of a statute de novo. Hoffman v. Chandler, 231 Ariz. 362, 364 ¶ 8, 295 P.3d 939, 941 (2013). Our primary objective in interpreting § 12–820.03 is to effectuate the legislature's intent. J.D. v. Hegyi, 236 Ariz. 39, 40 ¶ 6, 335 P.3d 1118, 1119 (2014). If the statute is subject to only one reasonable interpretation, we apply it without further analysis. See Backus v. State, 220 Ariz. 101, 104 ¶ 11, 203 P.3d 499, 502 (2009). If it is ambiguous, however, we consider other factors, including “the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose.” Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991). Because § 12–820.03 bars recovery against public entities if the defense is proven, we construe it narrowly. Cf. Doe ex rel. Doe v. State, 200 Ariz. 174, 176 ¶ 4, 24 P.3d 1269, 1271 (2001).

B.

1.

¶ 13 The state owes a common-law duty to travelers to keep its roadways reasonably safe for travel. See Dunham v. Pima County, 161 Ariz. 304, 306, 778 P.2d 1200, 1202 (1989) ; Bach v. State, 152 Ariz. 145, 147, 730 P.2d 854, 856 (App.1986). But, despite that overarching obligation, the state may be relieved from liability for roadway-related injuries under the circumstances set forth in § 12–820.03, titled “Affirmative defense”:

Neither a public entity nor a public employee is liable for an injury arising out of a plan or design for construction or maintenance ^[ [^{2 ]} of or improvement to highways, roads, streets, bridges, or rights-of-way if the plan or design is prepared in conformance with generally accepted engineering or design standards in effect at the time of the preparation of the plan or design, provided, however, that reasonably adequate warning shall be given as to any unreasonably

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