Glazer v. State of Arizona, 212 Ariz. Adv. Rep. 16 (May 8, 2015) (J. Timmer)

STATE IMMUNE FROM LIABILITY FOR ROAD DESIGN THAT CONFORMED TO STATE OF THE ART AT TIME OF DESIGN BUT LIABLE FOR SUBSEQUENT FAILURE TO WARN OF DANGER

Plaintiff was seriously injured and her husband and daughter were killed on Interstate 10 when another motorist, attempting to avoid an 18 wheeler, lost control, crossed the median and struck plaintiff's vehicle head on.  The trial court denied defendant's motion for summary judgment and motion for judgment as a matter of law (directed verdict) and the jury awarded plaintiff $7 million. The Arizona Court of Appeals affirmed and the Arizona Supreme Court reversed in part and affirmed in part.

ARS sec. 820.03 provides: 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 dangerous hazards which would allow the public to take suitable precautions

The supreme court found that this statute unambiguously provides the government immunity from negligent road design claims where it can be shown the design in question complied with applicable engineering and design standards at the time the design was created. Here it was uncontroverted the road design in question complied with such standards in 1967 when I-10 was designed. Plaintiff's expert testified that as of 2002 that changed road conditions dictated a barrier be installed between the east and westbound lanes of traffic.  Increased traffic volume, speed of traffic and the number of head-on cross median collisions had rendered the highway "ultra-hazardous."  

Plaintiff's argument that her claim was not based upon the original design but rather the failure to act in response to the changed conditions and particularly its failure to monitor the cross-median crashes, was rejected. The court found that such a claim nonetheless involved an injury "arising out of" the original design which renders the immunity applicable.

However, the judgment was affirmed because it was also proven that the State had failed to warn of the dangerous condition that had evolved since the original design.