Glazer v. State

• Court: Arizona Court of Appeals
• Writing for the Court: THUMMA
• Citation: Glazer v. State, 234 Ariz. 305, 321 P.3d 470, 683 Ariz. Adv. Rep. 12 (Ariz. App. 2014)
• Decision Date: 03 April 2014
• Docket Number: No. 1 CA–CV 12–0572.,1 CA–CV 12–0572.
• 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.

234 Ariz. 305

321 P.3d 470

683 Ariz. Adv. Rep. 12

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. 1 CA–CV 12–0572.

Court of Appeals of Arizona, Division 1.

April 3, 2014.

Arizona Attorney General's Office By Daniel P. Schaack, Fred Zeder, Phoenix, Counsel for Defendant/Appellant.

The Leader Law Firm By John P. Leader, Tucson, Counsel for Plaintiff/Appellee.

Judge SAMUEL A. THUMMA delivered the opinion of the Court, in which Presiding Judge RANDALL M. HOWE and Judge PATRICIA A. OROZCO joined.

OPINION

THUMMA, Judge.

¶ 1 The State of Arizona appeals from a substantial jury verdict for plaintiffs arising out of a multiple-fatality car crash on Interstate 10. The State argues the superior court erred in: (1) failing to grant the State immunity as a matter of law; (2) denying a motion to preclude testimony from one of plaintiff's experts and (3) failing to grant a new trial when the jury allocated all fault to the State. Because the superior court did not err, the judgment is affirmed.

FACTS ¹ AND PROCEDURAL HISTORY

¶ 2 This case arises out of an August 2007 car crash that injured plaintiff Diana Glazer and killed her husband and their minor daughter. The Glazers were traveling west on I–10 in a minivan. Melissa Sumpter was driving east on I–10 in a sport utility vehicle. The crash occurred near milepost 171, south of Phoenix, on a portion of I–10 built in 1967. The speed limit was 75 miles per hour and traffic was moving at or above the speed limit.

¶ 3 Sumpter moved her SUV into the left lane to pass a semi-trailer truck. The truck then moved into the passing lane that Sumpter was occupying, although her exact location relative to the truck was disputed. The truck's lane change resulted in Sumpter driving her SUV onto the shoulder. Although Sumpter avoided contact with the truck, she apparently tried to drive back onto I–10 and lost control, shooting across the median and into oncoming traffic. Sumpter's SUV crashed head-on into the Glazers' van, killing Glazer's husband and young daughter and seriously injuring Glazer. The semi-trailer truck did not stop. In fact, although the existence of the truck was not disputed, neither the truck nor its driver was ever identified.

¶ 4 Glazer sued the State alleging negligence for failing to have installed “median barriers ... separating the eastbound and westbound lanes” of I–10 in the area of the crash. Before, during and after trial, the State made various filings relevant to this appeal. The State filed a timely notice pursuant to Arizona Revised Statutes (A.R.S.) section 12–2506(B) (2014) ² and Arizona Rule of Civil Procedure 26(b)(5), naming Sumpter and the driver of the truck as nonparties at fault. The State sought summary judgment pursuant to A.R.S. § 12–820.03, an affirmative defense applicable to a claim for “an injury arising out of a plan or design for construction” of a highway if certain conditions are met. Finding the statute did not apply to Glazer's claim, the superior court denied the motion.

¶ 5 Glazer offered expert testimony from transportation engineer Dr. Robert Bleyl, who opined that the State should have installed a median barrier in the area prior to the crash. The State moved to preclude that testimony and requested an evidentiary hearing, claiming Dr. Bleyl was not qualified and used improper methodology. The superior court denied the State's motion without an evidentiary hearing. During trial, after an evidentiary hearing outside the presence of the jury, the court found Dr. Bleyl had shown a proper foundation to discuss prior accidents as a basis for his opinion. At trial, Dr. Bleyl testified that the State should have installed a median barrier in the area where the crash occurred sometime after 2000 but before the crash, and provided bases for his testimony.

¶ 6 At the close of Glazer's case, at the close of the evidence and then again after the verdict, the State moved for judgment as a matter of law pursuant to Arizona Rule of Civil Procedure 50, challenging the superior court's rulings regarding A.R.S. § 12–820.03 and the admissibility of Dr. Bleyl's testimony. The superior court denied those motions.

¶ 7 The verdict form listed the State, Sumpter and the unknown truck driver as each having potential fault for the crash. After an eight-day trial, the jury awarded Glazer $7,800,000 in damages, apportioned all fault to the State and apportioned no fault to Sumpter or the unknown truck driver. The State moved for a new trial claiming the verdict was excessive and not justified by the evidence and again challenging Dr. Bleyl's testimony. The superior court denied the motion. This court has jurisdiction over the State's timely appeal from the resulting judgment pursuant to A.R.S. §§ 12–2101(A)(1), (A)(5)(a).

DISCUSSION

¶ 8 The State argues the superior court erred in: (1) failing to enter judgment in favor of the State as a matter of law pursuant to A.R.S. § 12–820.03; (2) overruling the State's objections to Dr. Bleyl's testimony and (3) failing to grant a new trial after the jury assigned all fault to the State. This court addresses these arguments in turn.

I. The Superior Court Did Not Err In Finding A.R.S. § 12–820.03 Did Not Apply To Glazer's Claim.

¶ 9 The resolution of the State's claimed immunity implicates the State's duty to keep public highways reasonably safe for travel, the text of A.R.S. § 12–820.03 and the application of those legal concepts to the claim Glazer asserted and presented to the jury.

A. The State's Duty To Keep Public Highways Reasonably Safe For Travel.

¶ 10 “There is a relationship between the State [of Arizona] and a traveler using a public highway which imposes a legal obligation upon the State for that person's safety. More specifically, the State has a duty to keep its highways reasonably safe for travel.” Bach v. State, 152 Ariz. 145, 147, 730 P.2d 854, 856 (App.1986). The Arizona Supreme Court repeatedly has recognized this common law duty for nearly ninety years. See, e.g., Dunham v. Pima County, 161 Ariz. 304, 306, 778 P.2d 1200, 1202 (1989); Barnes v. City of Tucson, 157 Ariz. 566, 568, 760 P.2d 566, 568 (1988); Coburn v. City of Tucson, 143 Ariz. 50, 51, 691 P.2d 1078, 1079 (1984); Beach v. City of Phoenix, 136 Ariz. 601, 602, 667 P.2d 1316, 1317 (1983); Ariz. State Highway Dept. v. Bechtold, 105 Ariz. 125, 129, 460 P.2d 179, 183 (1969); City of Phoenix v. Mayfield, 41 Ariz. 537, 548, 20 P.2d 296, 300 (1933); City of Phoenix. v. Clem, 28 Ariz. 315, 327, 237 P. 168, 172 (1925).

¶ 11 Although “not an insurer of those who travel,” the State is “bound to keep its streets safe for travel” by exercising ordinary care and caution. Clem, 28 Ariz. at 327, 237 P. at 172. This duty includes an obligation “to erect railings or barriers along the highway at places where they are necessary to make the highway safe and convenient for travelers in the use of ordinary care.” Mayfield, 41 Ariz. at 548, 20 P.2d at 300 (quoting Johnson v. State, 186 A.D. 389, 391, 173 N.Y.S. 701, 703 (1919)). More specifically, the State has a duty “to place proper barriers, railings, guards and/or warning signs at dangerous places on a highway when necessary for travelers' safety.” Bach, 152 Ariz. at 148, 730 P.2d at 857 (citing authority); see also Mayfield, 41 Ariz. at 546, 20 P.2d at 299 (noting government entity “is liable for personal injuries caused by the failure to erect guards or railings to prevent accidental driving into or over ... excavations, embankments, or canals”). Even where an “improvement is not defective when made, but later becomes so, the rule is that the [State] must have actual notice of a defect, or the defect must have existed a sufficient length of time to imply notice, before [the State] is guilty of actionable negligence.” Clem, 28 Ariz. at 327, 237 P. at 172.

¶ 12 Given this duty, the superior court in this case properly instructed the jury that:

The [S]tate has [a] duty to keep its highways reasonably safe for travel. That duty includes the duty to place proper barriers, railings, guards and/or warning signs at dangerous places on a highway when necessary for travelers' safety.

The mere fact that an accident occurred does not compel the conclusion that a condition was unreasonably dangerous.

B. The Text Of A.R.S. § 12–820.03.

¶ 13 Titled “Affirmative defense,” A.R.S. § 12–820.03 reads:

Neither a public entity nor a public employee is liable for an injury arising out of a plan or design for construction or maintenance 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 dangerous hazards which would allow the public to take suitable precautions.

This statute was enacted in 1984 in a slightly different form as part of the Actions Against Public Entities or Public Employees Act (the Act), codified at A.R.S. §§ 12–820–826. The Act followed the Arizona Supreme Court's abolition of judicially-created State immunity for tort liability. See Ryan v. State, 134 Ariz. 308, 310, 656 P.2d 597, 599 (1982) (also encouraging the Legislature to address the issue), superseded by the Act as stated in Clouse ex rel. Clouse v. State, 199 Ariz. 196, 16 P.3d 757 (2001) (3–2 decision); Stone v. Ariz. Highway Comm'n, 93 Ariz. 384, 392–93, 381 P.2d 107, 112–13 (1963), superseded by the Act as stated in Backus v. State, 220 Ariz. 101, 203 P.3d 499 (2009) (same); see also Goss v. City of Globe, 180 Ariz. 229, 232, 883 P.2d 466, 469 (App.1994) (describing Act's history).

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