Arizona Court of Appeals Division One Holds That the Affirmative Defense Protecting the State from Claims of Injuries Arising from Highway Design (A.R.S. § 12-820.03) Does Not Apply to Claims Alleging That Changed Circumstances Made a Highway Unreasonably Unsafe.

Arizona appealed from a $7.8 million jury verdict against the State in connection with a car crash on I-10.  An SUV traveling east on I-10 tried to pass a semi-trailer but lost control after the truck switched into the same left lane.  The SUV crossed the median into oncoming traffic and hit a car head-on, killing two people in the car and injuring one.

The victims sued Arizona for failing to install median barriers.  Arizona raised the affirmative defense provided by A.R.S. § 12-820.03, which eliminates liability for injuries arising from the design of a highway if the design conforms to generally accepted standards at the time of design.  The relevant section of I-10 was built in 1967 and the parties did not dispute that no median barriers were required at that time.  The victims, however, argued that their claims did not arise from the initial design, but rather from the State’s failure to add the barriers after changed circumstances.  The victims argued that the increases in traffic volume, speed of traffic, and vehicle size since 1967, as well as the number of median-crossover accidents, required the State to add the median barriers.  The Court of Appeals affirmed the superior court’s ruling that this claim did not trigger immunity under A.R.S. § 12-820.03 because the victims based their claims on changed circumstances rather than the initial design. 

The Court of Appeals also affirmed several other rulings from the superior court.  It affirmed the court’s decision to allow the plaintiff’s expert to testify despite not holding a pretrial evidentiary hearing and not making express findings regarding the testimony’s admissibility.  It also rejected challenges to the expert’s qualifications and methodologies, namely the expert’s use of data from 2003 to 2007 to reach the conclusion that Arizona should have added median barriers in 2000.  In addition, the Court of Appeals upheld the superior court’s denial of the State’s motion for a new trial, which was based upon the jury’s apportionment of zero liability to the drivers of the truck and SUV.  Conflicting evidence presented at trial regarding the actions of both drivers permitted the jury to reach its conclusions.

Judge Thumma authored the opinion; Judges Howe and Orozco concurred.