Campion v. City of Tucson, No. 2 CA-CV 2022-0046 (App. Div. II, September 11, 2023) (J. Eppich) https://www.appeals2.az.gov/decisions/CV20220046Opinion.pdf

A.R.S. § 12-820.03(A) GIVES TRIAL COURT DISCRETION TO BIFURCATE LIABILITY AND DAMAGE ISSUES FROM THE APPLICABILITY OF A GOVERNMENTAL IMMUNITY DEFENSE/TRIAL COURT HAS BROAD DISCRETION TO DENY REQUEST FOR DISCLOSURE OF PRIOR ACCIDENT HISTORY WHERE THE BURDEN TO COMPLY WITH THE REQUEST OUTWEIGHS THE BENEFIT AND IS DISPROPORTIONATE TO THE NEEDS OF THE CASE

This wrongful death action brought pursuant to A.R.S. § 12-611 against the City of Tucson arose when plaintiff's decedents were struck and killed in a crosswalk.  Plaintiffs sued the City of Tucson alleging it was negligent when it changed the crosswalk in question from a monitored school cross walk to an unmanned pedestrian crosswalk. The issue of whether the City was immune from this suit under A.R.S. § 12-611 was submitted to a jury after each party's motions for summary judgment on the issue were denied. The jury found the City to be immune. This appeal followed the denial of plaintiff's motion for new trial under rule 59 of the Arizona Rules of Civil Procedure. The Arizona Court of Appeals affirmed.

A.R.S. § 12-820.03(A) provides immunity to a public entity for injuries “arising out of a plan or design for construction or maintenance of or improvement to transportation facilities. . . . [where] plan or design is prepared in conformance with generally accepted engineering or design standards in effect at the time.” Here, where testifying engineers disagreed as to whether “generally accepted engineering standards” were met, it was appropriate for the trial court to deny motions for summary judgment and submit the issue to a jury. The denial of a motion for summary judgment is reviewable on appeal only when the decision turns on a question of law. Further, raising the issue of denial of a motion for summary judgment in a motion for new trial does not make the issue appealable.

Plaintiff also took issue with the trial court's decision to bifurcate the issues to be tried, trying only the immunity issue first, claiming the issue of liability should have been tried along with the immunity defense. 12-820.03(B) provides that “[i]f a genuine issue of material fact exists as to whether the public entity or public employee has met the requirements of subsection A of this section, the issue shall be resolved by a trial before and separate and apart from a trial on damages.” The statute is silent on when liability is to be tried but it does not require liability be tried at the same time as the immunity issue. Bifurcating the case as to the affirmative defense only, with liability and damages to be tried later if no immunity is found is within the “broad discretion” of the trial court.

The court of appeals further sustained the trial court's decision to exclude evidence of prior accidents at a nearby intersection which plaintiff's expert was to testify he had relied upon in forming his opinion based upon plaintiffs alleged failure to formally disclose the evidence in an expert report. Plaintiff pointed to numerous places in the record where the evidence was disclosed, albeit not in an expert report.  Rule 26.1(d)(4) requires that expert witnesses provide a report containing “a complete statement of all opinions the expert will express and the basis and reasons for them” as well as “the facts or data considered by the expert in forming them.” Not in the report=not properly disclosed.

Plaintiff further argued the trial court erred in excusing the City from its failure to comply with the court's order that prior similar accidents in the area of the accident in question be disclosed and ultimately agreeing with the City that full disclosure of this data would be “unduly burdensome and disproportionate to the needs of the case.”  While the court of appeals agreed that such evidence could be relevant to the question of foreseeability, the trial court has “broad discretion” to rule that requiring disclosure of such evidence would exceed the proportionate needs of the case and that the burden outweighed any perceived benefit. Here the trial court properly agreed with the defense affidavit from a city traffic engineer that it  “would take weeks or more to accomplish and would require resources that the City Department of Transportation and Mobility does not have.”