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Evidence: Where Facts Demonstrating Negligence Do Not Require Expert Testimony to Survive Summary Judgment

Posted by Ted A. Schmidt | Jun 13, 2024 | 0 Comments

Fong v. City of Phoenix, No.1 CA-CV 23-0520 (App. Div. I, June 6 , 2024) (J.Kiley) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/1%20CA-CV%2023-0520%20Fong%20v.%20City%20of%20Phx%20OP.pdf

WHERE CONSTRUCTION SIGNAGE, BARRICADES AND FLAGMAN FAILED TO DETOUR BIKE LANE TRAFFIC AWAY FROM TRENCH PLAINTIFF DID NOT NEED EXPERT TESTIMONY TO PROVE BREACH OF THE STANDARD OF CARE—SIMPLE NEGLIGENCE

Plaintiff was seriously injured while riding her bicycle in a designated bike lane, through construction that led her to a 8'x8' and 4' deep, unmarked and unbarricaded excavated hole.  Defendant City of Phoenix and contractor Trafficade were granted summary judgment by the trial court arguing plaintiff was unable to prove a breach of the standard of care in traffic control without an expert. The Arizona Court of Appeals reversed on appeal.

The standard of care for a municipality and its independent contractor is to exercise “ordinarily prudent . . . reasonable care to avoid injury to the traveling public.”  Juries are composed of motorists who regularly navigate roads with traffic control signs. As such,  “lay people serving on a jury do not

require expert assistance to determine if the signage and barricades around  the excavation site gave the traveling public adequate warning of the dangerous condition within.”

Understood that a road design case may very well be a different kettle of fish, but here where the evidence showed no barricades or signage to detour bicycle traffic away from the trench, where such signage was available, but not used and where a flagman whose job it was to direct traffic away from the hole was sitting on a backhoe, ignoring traffic and  talking on his cell phone with his wife, plaintiff did not require an expert to prove a breach of the standard of care.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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