Diana Glazer v. State of Arizona

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

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. CV-14-0123-PR

Filed May 8, 2015

Appeal from the Superior Court in Maricopa County

The Honorable John Christian Rea, Judge

No. CV2009-001261

AFFIRMED

Opinion of the Court of Appeals, Division One

234 Ariz. 305, 321 P.3d 470 (2014)

VACATED IN PART

COUNSEL:

John P. Leader, The Leader Law Firm, Tucson; Christopher J. Zachar, The

Zachar Law Firm, P.C., Phoenix; and Timothy J. Aiken (argued), Aiken &

Scoptur, P.C., Milwaukee, WI, Attorneys for Diana Glazer

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor

General, Daniel P. Schaack, Fred Zeder (argued), Assistant Attorneys

General, Phoenix, Attorneys for State of Arizona

Barbara LaWall, Pima County Attorney, Dennis C. Bastron, Deputy County

Attorney, Civil Division, Tucson, Attorneys for Amicus Curiae Pima

County

GLAZER V. STATE

Opinion of the Court

Eileen Dennis GilBride, Jennifer B. Anderson, Jones, Skelton & Hochuli,

P.L.C., Phoenix, Attorneys for Amici Curiae Apache, Cochise, Gila,

Graham, Greenlee, La Paz, Maricopa, Mohave, Navajo, Pinal, Santa Cruz,

Yavapai, and Yuma Counties

Kathleen L. Wieneke and Nicholas D. Acedo, Struck Wieneke & Love,

P.L.C., Chandler, Attorneys for Amicus Curiae League of Arizona Cities

and Towns

Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C.,

Tucson, and David L. Abney, Knapp & Roberts, P.C., Scottsdale, Attorneys

for Amicus Curiae The Arizona Association for Justice/Arizona Trial

Lawyers Association

John C. Lemaster and Naomi Thurston, Ryley Carlock & Applewhite,

Phoenix; W. Raymond Johnson III, Johnson Law Group, PLC, Mesa, and

Lynn Eric Goar, Law Office of Lynn Eric Goar, PC, Tucson, Attorneys for

Amicus Curiae Vicki Laffoon, et al.

JUSTICE TIMMER authored the opinion of the Court, in which VICE

CHIEF JUSTICE PELANDER, JUSTICES BERCH and BRUTINEL joined,

and CHIEF JUSTICE BALES dissented in part and concurred in the result.

JUSTICE TIMMER, opinion of the Court:

¶1 Section 12-820.03, A.R.S., provides public entities a “state of

the art” affirmative defense against claims for injuries arising out of a plan

or design for construction of a roadway. To establish the defense, the public

entity must show that the plan or design, when created, conformed to

generally accepted engineering or design standards and that warnings of

any unreasonably dangerous hazards were given that were adequate to

permit the public to take suitable precautions. We today hold that the

affirmative defense remains available even if material changes to travel

have rendered the roadway substandard. Because the State failed to

establish every element of the defense in this case, however, the trial court

did not err by denying the State’s motions for judgment as a matter of law.

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GLAZER V. STATE

Opinion of the Court

I. BACKGROUND 1

¶2 In 2007, Melissa Sumpter was driving in the mid-afternoon

behind a semi-truck on an eastbound, two-lane stretch of Interstate 10 (“I-

10”) southeast of Phoenix. As Sumpter started to pass the truck, it began to

move into her lane, causing her to swerve to the left to avoid a collision. She

lost control of her vehicle, which crossed through the eighty-four foot dirt

median into the westbound lanes, and crashed head-on into Diana Glazer’s

vehicle, killing Glazer’s husband and daughter and seriously injuring

Glazer.

¶3 Glazer sued the State for failing to install a median barrier in

the area of the accident. The State named as non-parties at fault the

unidentified truck driver and Sumpter.

¶4 The State moved for summary judgment based on A.R.S. § 12-

820.03. It argued that because a median barrier was not required when I-10

was designed and constructed in 1967 and the Glazers’ injuries arose from

the absence of a barrier, § 12-820.03 relieved the State from liability.

Although it presented evidence that the roadway was not unreasonably

dangerous, the State did not address § 12-820.03’s warning requirement.

Opposing the motion, Glazer argued that § 12-820.03 did not apply to her

claim, and she presented opinion evidence that the absence of a median

barrier rendered this stretch of I-10 unreasonably dangerous.

¶5 The trial court ruled that § 12-820.03 did not apply because

Glazer did not allege that I-10 was unsafe when it was designed but, rather,

asserted that the circumstances in 2007 rendered this portion of the

roadway unreasonably unsafe. According to the court, § 12-820.03 “[does

not] grant the State immunity to properly design a highway in 1967 and

then ignore the developments of 40 years in the speed, size, and volume of

traffic that might render the highway no longer reasonably safe.” The court

therefore denied the motion.

¶6 At trial, Glazer’s expert witness opined that the State should

have installed barriers by 2002 due to the number of cross-median accidents

1 We review the evidence in the light most favorable to upholding the

jury’s verdict. See Hutcherson v. City of Phoenix, 192 Ariz. 51, 53 ¶ 13, 961

P.2d 449, 451 (1998).

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GLAZER V. STATE

Opinion of the Court

that likely occurred in the accident area before 2000. He surmised that such

accidents occurred because the roadway was “ultra-hazardous” by 2006

due to the increases in traffic volume, truck traffic, and speed limit since

1967 and because ten cross-median accidents occurred from 2003 to 2007 in

the eight-mile stretch of I-10 surrounding the accident site. The State

countered with evidence that it complied with nationwide standards by

monitoring I-10 in one-mile segments, that no cross-median accidents had

occurred in the segments immediately surrounding the accident site during

the preceding five years, and that the site was not in a high-accident

location.

¶7 At the conclusion of Glazer’s case-in-chief, the court denied

the State’s motion for judgment as a matter of law (“JMOL”), which again

asserted § 12-820.03’s affirmative defense. See Ariz. R. Civ. P. 50(a). The

jury found in favor of Glazer, awarded $7.8 million in damages, and

assigned 100 percent of fault to the State and none to Sumpter or the truck

driver. The court denied the State’s post-trial motions, including a renewed

motion for JMOL asserting the § 12-820.03 defense. See id. 50(b).

¶8 The court of appeals affirmed. Glazer v. State, 234 Ariz. 305,

314 ¶ 25, 321 P.3d 470, 479 (App. 2014). It held that § 12-820.03 was

inapplicable because Glazer’s claim did not arise out of a plan or design

used in 1967, but instead arose from the State’s “fail[ure] to install a median

barrier on I-10 given substantial, material changes within a decade (or less)

before the 2007 crash.” Id. at 314 ¶ 25 n.5, 321 P.3d at 479 n.5.

¶9 We granted review because the meaning of § 12-820.03 is a

matter of first impression for this Court and of statewide importance. We

have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24.

II. DISCUSSION

A.

¶10 This Court abolished the doctrine of sovereign immunity for

tort liability in 1963, concluding that the government and its employees

should generally be responsible for injuries they negligently cause. Stone v.

Ariz. Highway Comm’n, 93 Ariz. 384, 392, 381 P.2d 107, 112 (1963) (“[T]he

rule is liability and immunity is the exception.”). But determining when the

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GLAZER V. STATE

Opinion of the Court

government should be immunized from liability proved problematic in

ensuing cases, and we invited the legislature to address the issue. See Ryan

v. State, 134 Ariz. 308, 310, 656 P.2d 597, 599 (1982), superseded by statute as

stated in Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203 ¶ 27, 16 P.3d 757, 764

(2001).

¶11 The legislature responded in 1984 by enacting the Actions

Against Public Entities or Public Employees Act (the “Act”), which specifies

circumstances in which governmental entities and public employees are

immune from tort liability. 1984 Ariz. Sess. Laws, ch. 285 (2d Reg. Sess.)

(codified at A.R.S. §§ 12-820 to -826). The Act leaves intact the common-law

rule that the government is liable for its tortious conduct unless immunity

applies. Pritchard v. State, 163 Ariz. 427, 431, 788 P.2d 1178, 1182 (1990); see

also 1984 Ariz. Sess. Laws, ch. 285, § 1(A) (declaring as public policy that

“public entities are liable for acts and omissions of employees in accordance

with the statutes and common law of this state”).

¶12 We review the interpretation of a statute de novo. Hoffman v.

Chandler, 231 Ariz. 362, 364 ¶ 8, 295 P.3d 939, 941 (2013). Our primary

objective in interpreting § 12-820.03 is to effectuate the legislature’s intent.

J.D. v. Hegyi, 236 Ariz. 39, 40 ¶ 6, 335 P.3d 1118, 1119 (2014). If the statute is

subject to only one reasonable interpretation, we apply it without further

analysis. See Backus v. State, 220 Ariz. 101, 104 ¶ 11, 203 P.3d 499, 502 (2009).

If it is ambiguous, however, we consider other factors, including “the

context of the statute, the language used, the subject matter, its historical

background, its effects and consequences, and its spirit and purpose.”

Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991). Because

§ 12-820.03 bars recovery against public entities if the defense is proven, we

construe it narrowly. Cf. Doe ex rel. Doe v. State, 200 Ariz. 174, 176 ¶ 4, 24

P.3d 1269, 1271 (2001).

B.

1.

¶13 The state owes a common-law duty to travelers to keep its

roadways reasonably safe for travel. See Dunham v. Pima County, 161 Ariz.

304, 306, 778 P.2d 1200, 1202 (1989); Bach v. State, 152 Ariz. 145, 147, 730 P.2d

854, 856 (App. 1986). But, despite that overarching obligation, the state may

5

GLAZER V. STATE

Opinion of the Court

be relieved from liability for roadway-related injuries under the

circumstances set forth in § 12-820.03, titled “Affirmative defense”:

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.

Thus, to successfully invoke this defense, the state must prove that (1) the

injury alleged arose out of a plan or design for the construction,

maintenance, or improvement of a roadway or roadway feature, (2) the

plan or design conformed to engineering or design standards generally

accepted when the plan or design was prepared, and (3) if any

unreasonably dangerous hazards exist, a reasonably adequate warning was

given that would have allowed the public to take suitable precautions. See

Hegel v. O’Malley Ins. Co., 122 Ariz. 52, 56, 593 P.2d 275, 279 (1979) (noting

that the proponent of an affirmative defense has the burden to prove it).

2.

¶14 The key issue here is whether injuries from the Glazers’

collision were ones “arising out of a plan or design” for the construction of

I-10. We give these terms their usual and commonly understood meanings

unless the legislature intended a different meaning. See Bilke v. State, 206

Ariz. 462, 464–65 ¶ 11, 80 P.3d 269, 271–72 (2003).

¶15 A “plan” can be a “method of acting, doing, [or] proceeding”

or “a design or scheme of arrangement,” Random House Webster’s

Unabridged Dictionary 1479–80 (2d ed. 2001), while a “design” is a

2 “Maintenance” means “the establishment or continuation in

existence of” roadways and roadway structures “and does not mean or

refer to ordinary repair or upkeep.” A.R.S. § 12-820(4).

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GLAZER V. STATE

Opinion of the Court

“combination of details or features” or a plan for “form and structure,” id.

at 539. Injuries “arise” out of a plan or design if they “result or proceed”

from either. See id. at 113.

¶16 Glazer asserted that the injuries she and her family suffered

resulted from the lack of a median barrier, which made the stretch of I-10

near the accident site dangerous in light of the volume, speed, and type of

traffic along I-10 in 2007. A median barrier is a roadway safety feature, Tex.

Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002), and the State’s

omission of this feature was part of its 1967 design for construction of I-10,

see Wyckoff v. State, 108 Cal. Rptr. 2d 198, 204 (Ct. App. 2001) (“[W]hat

caused the accident—the absence of a median barrier—was part of the

design.”). No evidence suggests that the construction of the relevant stretch

of I-10, including the median, changed since 1967. Just as no barrier existed

to prevent cross-median accidents in 2007, no barrier prevented them in

1967. In other words, the highway had the same design in 2007 that it had

when built. For these reasons, and based on the wording of § 12-820.03 and

the crux of Glazer’s negligence claim, we conclude that the Glazers’ injuries

were ones “arising out of” the State’s original construction design for that

portion of I-10.

¶17 The dissent contends that “[b]ecause the statute recognizes

that injuries may arise from plans for maintenance or improvement as

distinct from plans for construction, it is inappropriate to conclude that an

injury is one ‘arising out of’ a plan of construction merely because the injury

relates to existing highway conditions.” See infra. ¶ 40. But the record does

not contain evidence that any plan or design for the maintenance of or

improvement to the relevant area of I-10 supplanted the original

construction design. Indeed, neither the trial court nor the court of appeals

addressed “maintenance” or “improvement.” On this record, the lack of a

median barrier was an inherent feature of the original construction design

that persisted to the time of the accident, making our conclusion entirely

appropriate.

¶18 The court of appeals reached a different conclusion, reasoning

that “Glazer’s claim, filings and evidence at trial did not involve a claimed

‘injury arising out of a plan or design’ for the construction of I-10 in 1967,

meaning A.R.S. § 12-820.03 did not apply.” Glazer, 234 Ariz. at 312 ¶ 19, 321

P.3d at 477. Instead, the court concluded that the Glazers’ injuries arose

from the State’s failure to install a median barrier as required for safe travel

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GLAZER V. STATE

Opinion of the Court

due to material changes in the use of I-10 that occurred decades after its

1967 design. Id. at ¶¶ 17–19. Relatedly, our dissenting colleague asserts

that the Glazers’ injuries did not arise out of the original construction

design because the omission of a median barrier did not make I-10 unsafe

under the conditions as contemplated in 1967. See infra ¶ 46. He would not

apply the affirmative defense to injuries arising from construction plans

when “the highway is being used in substantially different conditions than

for which it was designed.” Infra ¶ 41. In essence, both the court of appeals

and the dissent conclude that § 12-820.03 does not apply if a public entity

fails to redesign a roadway when material changes make upgrades

necessary to keep the roadway reasonably safe for travel, and a claimant

suffers injuries as a result. We disagree.

¶19 Nothing in § 12-820.03 precludes its application if injuries

occur after material changes to travel over a roadway make the most-recent

plan or design substandard. Requiring the public entity to show that its

plan or design conformed to accepted standards in effect “at the time of the

preparation of the plan or design,” suggests that the defense applies to

injuries occurring after standards and circumstances have changed. A.R.S.

§ 12-820.03. Also, requiring warnings for “unreasonably dangerous

hazards” contemplates that roadways could become hazardous despite

having been designed and built according to plans that originally

conformed to safety standards. Id.

¶20 The court of appeals’ and the dissent’s interpretation vitiates

much of § 12-820.03’s protection as a state-of-the-art defense. Additionally,

they fail to demarcate when or what “material changes” or “substantially

different conditions” to travel render § 12-820.03 inapplicable, making

application of the defense uncertain. Arizona has thousands of miles of

state, county, and municipal roadways, and material changes to travel

conditions like speed limits and traffic congestion occur over time that may

make roadway designs outdated. But public entities have limited resources

to bring all roadways into compliance with current design standards and

must prioritize needs. Cf. Ariz. Dep’t of Transp., Roadway Design Guidelines

§ 3.1 (2012) (“Design standards have evolved over a number of years. It is

not economically feasible to bring previously constructed highways into

conformity with current standards.”). If § 12-820.03 does not apply when

material changes have occurred to travel over roadways, public entities will

be forced to either expend larger shares of their budgets to continuously

update roadways and roadway features or risk sweeping liability exposure.

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GLAZER V. STATE

Opinion of the Court

This is precisely the scenario that the legislature intended to protect against

by enacting § 12-820.03.

¶21 When it passed the Act, the legislature acknowledged that

“unfair and inequitable results” occur when strictly applying sovereign

immunity, but recognized that, unlike private entrepreneurs, “the area

within which government has the power to act for the public good is almost

without limit and therefore government should not have the duty to do

everything that might be done.” 1984 Ariz. Sess. Laws, ch. 285, § 1(A); cf.

Report of the Governor’s Commission on Governmental Tort Liability 8 (1983)

[hereinafter Commission Report] (stating that the Act balances the inequity

of government immunity with “the need for governmental immunity in

limited situations because of the unique role of government and because of

competing policy and fiscal considerations”). 3 If § 12-820.03’s protection

vanishes when changes in travel occur over a roadway or roadway feature,

public entities would be tasked with doing “everything that might be done”

for transportation safety by continuously bringing roadways up to current

standards. Cf. Daniels v. Dep’t of Transp., 474 S.E.2d 26, 28 (Ga. Ct. App.

1996) (holding that the Georgia Tort Claims Act exempts a public entity

from liability for failing to upgrade a highway to meet current design

standards because permitting liability “would effectively eliminate the

[Act’s] protection”).

¶22 Glazer argues that her family’s injuries arose not from any

plan or design but from the State’s failure to monitor I-10 for cross-median

accidents in compliance with its operational standards. Had the State done

so, Glazer contends, it would have identified the collision area as having an

unacceptably high number of such accidents and responded by installing a

median barrier before the collision in this case occurred.

¶23 But the State’s failure to monitor I-10’s cross-median

accidents, in and of itself, did not injure the Glazers. They suffered injuries

from the State’s failure to install a median barrier at the collision site.

Although Glazer frames her claim as one arising from the State’s failure to

adhere to operational standards, the core of her claim is that the State failed

3 The Act is an amended version of legislation proposed in the

Commission Report. James L. Conlogue, Note, A Separation of Powers Analysis

of the Absolute Immunity of Public Entities, 28 Ariz. L. Rev. 49, 50–51 (1986)

(describing legislative history of the Act).

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GLAZER V. STATE

Opinion of the Court

to redesign the roadway by adding a median barrier in the face of changed

standards and circumstances. Cf. Greenwood v. State, 217 Ariz. 438, 444–45

¶ 22, 175 P.3d 687, 693–94 (App. 2008) (“[I]f qualified immunity were

inapplicable simply because the form of Plaintiffs’ allegations did not

mimic the statute, it would encourage plaintiffs to purposely plead their

claims to avoid the application of the statute.”).

¶24 Both the trial court and the court of appeals expressed a

concern, which the dissent echoes, that the interpretation of § 12-820.03 we

adopt would permit public entities to ignore unsafe road conditions. See

Glazer, 234 Ariz. at 314 ¶ 24, 321 P.3d at 479 (“[T]he State could ignore

significant changes in traffic volume and speed, vehicle size, accident

frequency and similar developments without regard to safety or liability.”);

see also infra ¶ 37. But to successfully assert the § 12-820.03 defense, the State

must provide “reasonably adequate warning” of “any unreasonably

dangerous hazards” so as to allow travelers to take suitable precautions.

A.R.S. § 12-820.03; cf. Commission Report at 14 (explaining that the

affirmative defense “does not absolve the responsible governmental entity

from a duty to exercise reasonable care in warning about hazards, such as

a narrow bridge or a dangerous curve, even [though] at the time the

highway was designed and built the ‘state of the art’ was such that the

hazard could not have been eliminated”).

¶25 The dissent incorrectly asserts that “[our] view effectively

replaces the State’s duty to keep its highways reasonably safe with a duty

to warn the public that highways have become unreasonably dangerous.”

See infra ¶ 45. But it is the statute, not our “view,” that qualifiedly displaces

common law, and § 12-820.03’s affirmative defense applies only if the state

can make the required showing. Moreover, the defense does not relieve the

state from performing ordinary repair and upkeep on highways as needed

to keep the traveling public safe. See A.R.S. § 12-820(4). Thus, in addition

to providing warnings for unreasonably dangerous hazards, the state must

protect the public, in a non-negligent manner, against hazards that fall

outside the ambit of § 12-820.03 and against hazards that could be remedied

through ordinary upkeep and repair.

¶26 Other factors encourage public entities to address material

changes in roadway travel that affect safety. As the State and the

governmental Amici point out, public entities are motivated by constituent

welfare and federal funding requirements to keep the roadways safe for

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GLAZER V. STATE

Opinion of the Court

travel. See 23 U.S.C. § 148(c)(1) (requiring a state to implement a highway

safety improvement program to receive federal funding for highways).

According to the state traffic engineer, Arizona monitors all roadways and

identifies high-accident locations to address safety issues, using a system

required by the federal government as a safety-funding condition.

¶27 In sum, § 12-820.03 can apply when material changes to

roadway travel render a plan or design for construction, maintenance, or

improvement obsolete and the plaintiff’s injuries arise from the public

entity’s failure to upgrade the roadway in response to those changes. We

emphasize that § 12-820.03 does not negate a public entity’s common-law

duty to keep roadways reasonably safe for travel. It simply provides a

defense to liability if the public entity proves the statutory elements.

C.

¶28 The State did not move for a new trial based on § 12-820.03,

and it does not ask this Court to remand the case for a new trial. Cf. In re

Estate of Hanscome, 227 Ariz. 158, 164 ¶ 20, 254 P.3d 397, 403 (App. 2011)

(“The court may not . . . grant a new trial to a non-moving party who did

not timely request one.”). Instead, the State argues that it proved § 12-

820.03’s affirmative defense and the trial court therefore erred by denying

its motions for JMOL. 4 The State was entitled to JMOL if, given the

evidence concerning § 12-820.03’s requirements, and viewing the evidence

in the light most favorable to Glazer as the non-moving party, reasonable

people could not find in favor of Glazer. Cf. Orme School v. Reeves, 166 Ariz.

301, 309, 802 P.2d 1000, 1008 (1990).

¶29 In prior cases, we have reviewed the denial of motions for

JMOL for an abuse of discretion. See, e.g., Gonzales v. City of Phoenix, 203

Ariz. 152, 153 ¶ 2, 52 P.3d 184, 185 (2002). The standards for granting or

denying a motion for JMOL and a motion for summary judgment are the

4 The State also challenges the trial court’s denial of its pretrial motion

for summary judgment. The denial of a motion for summary judgment

generally is not an appealable order. See State v. Superior Court, 140 Ariz.

365, 366, 681 P.2d 1384, 1385 (1984). Regardless, the record does not reflect,

and the State does not assert, that the trial court denied the motion for a

different reason than it denied the later motions for JMOL, and the State

does not assert any arguments unique to the summary judgment ruling.

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GLAZER V. STATE

Opinion of the Court

same. Orme School, 166 Ariz. at 309, 802 P.2d at 1008 (“Although the two

motions occur at different times during the trial process, they share the

underlying theory that there is no issue of fact and that the movant is

entitled to judgment as a matter of law.”). An appellate court reviews de

novo whether summary judgment is appropriate. See id. Because the same

standard applies for deciding a motion for summary judgment or for JMOL,

we now hold that an appellate court should also review de novo the grant

or denial of a motion for JMOL.

¶30 As previously explained, the Glazers’ injuries arose from the

State’s design for the construction of I-10. And Glazer concedes that the

design was prepared in conformance with accepted engineering or design

standards then in effect. Thus, the State established § 12-820.03’s first

requirement.

¶31 But the State did not establish its compliance with § 12-

820.03’s warning proviso. The State could satisfy that requirement by

showing either that the open median was not an “unreasonably dangerous

hazard,” thereby obviating the need for warnings, or, if an “unreasonably

dangerous hazard” existed, that the State provided adequate warnings to

allow travelers to take suitable precautions.

¶32 The State did not prove either alternative as a matter of law.

Although evidence supported a finding that the lack of a median barrier

did not create an unreasonably dangerous hazard, other evidence

permitted the opposite conclusion. Specifically, Glazer elicited expert

testimony that the lack of a barrier, coupled with changes to travel since I-

10 was originally constructed, made the median in the collision area

“dangerous” and “ultra-hazardous,” as demonstrated by an unusually high

number of cross-median accidents in the area. In light of this evidence, a

reasonable person could have found that the open median in the accident

area was an “unreasonably dangerous hazard,” cf. Bach, 152 Ariz. at 146,

730 P.2d at 857 (App. 1986) (holding that an off-road box culvert was an

unreasonably dangerous condition), and the State therefore needed to

demonstrate that it had given adequate warnings to establish § 12-820.03’s

defense, see Edwards v. Bd. of Supervisors, 224 Ariz. 221, 223 ¶¶ 15–17, 229

P.3d 233, 235 (App. 2010) (finding that county established § 12-820.03’s

“warning requirement” with uncontroverted evidence of a warning letter).

But the record does not show that the State gave any warnings, and the

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Opinion of the Court

State does not contend that it would have offered such evidence if the trial

court had correctly interpreted § 12-820.03.

¶33 The State nevertheless argues that Glazer waived § 12-

820.03’s warning requirement by failing to raise it before the jury returned

its verdict. But as the proponent of the affirmative defense, the State—not

Glazer—was required to prove its compliance with all aspects of § 12-

820.03, including the warning requirement, see Hegel, 122 Ariz. at 56, 593

P.2d at 279, and it failed to do so.

¶34 The State also contends that it was not required to comply

with the warning requirement because “no warning could have allowed the

public to take suitable precautions.” The State admits, however, it failed to

present any evidence to permit the jury to make that determination.

Therefore, we need not decide whether § 12-820.03 remains an available

defense if an effective warning is not possible.

¶35 Because a reasonable person could find that the unobstructed

median was an unreasonably dangerous hazard and no evidence showed

that the public had been adequately warned of the condition, the State did

not establish, as a matter of law, the affirmative defense prescribed by § 12-

820.03. Consequently, although the trial court misinterpreted § 12-820.03,

it did not err by denying the State’s motions for JMOL.

II. CONCLUSION

¶36 We hold that the affirmative defense in A.R.S. § 12-820.03 is

available when material changes to travel over roadways or roadway

features have rendered the original plans or designs substandard and no

other plans have succeeded them. The court of appeals held otherwise, and

we therefore vacate paragraphs nine through twenty-five of its opinion.

But, although the State proved some elements of the affirmative defense, it

did not show, as a matter of law, either that the open median in the collision

area was not an “unreasonably dangerous hazard” or, if it was, that the

State warned the public of this hazard. Consequently, the trial court did

not err by denying the State’s motions for JMOL. We therefore affirm the

trial court judgment.

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GLAZER V. STATE

CHIEF JUSTICE BALES, Dissenting in Part and Concurring in the Result

Bales, C.J., dissenting in part and concurring in the result.

¶37 The Glazers have never argued that the 1967 construction

plan was deficient for not including median barriers for this particular

stretch of the I-10 highway. Instead, they contended, and the jury agreed,

that the State breached its long-established duty to keep its highways

reasonably safe by not installing barriers, or taking other safety measures,

in light of dramatic changes in the highway’s usage in the last forty years.

Throughout this litigation, the State has asserted that A.R.S. § 12-820.03

allows it to ignore these changes and escape liability for the highway’s

dangerous condition merely because median barriers were not required in

1967. This interpretation would effectively eliminate the State’s duty to

keep its highways reasonably safe for travel.

¶38 I respectfully disagree with the majority’s conclusion, ¶¶ 13-

27, that § 12-820.03 applies to the Glazers’ negligence claim. But I agree

that, if the statute does apply, the State was not entitled to prevail as a

matter of law. Given the jury’s determination that the conditions were

unreasonably dangerous in 2007, the State would only have been entitled

to the affirmative defense if it had shown that it had provided adequate

warnings. See ¶ 31. The State never even attempted to make such a

showing.

¶39 Our interpretation of § 12-820.03 should be guided by several

background principles. First, we have recognized for more than ninety

years that the State has a duty to keep its highways reasonably safe for

travel. See, e.g., Dunham v. Pima County, 161 Ariz. 304, 306, 778 P.2d 1200,

1202 (1989); City of Phoenix. v. Clem, 28 Ariz. 315, 327, 237 P. 168, 172 (1925).

As the majority acknowledges, ¶ 13, this duty is not eliminated by § 12-

820.03, which provides an affirmative defense only in specified

circumstances. We should construe the statute narrowly, see Doe ex rel. Doe

v. State, 200 Ariz. 174, 176 ¶ 4, 24 P.3d 1269, 1271 (2001), and attempt to give

effect to each of its words, such that “no clause, sentence or word is

rendered superfluous, void, contradictory or insignificant.” Bilke v. State,

206 Ariz. 462, 464 ¶ 11, 80 P.3d 269, 271 (2003).

¶40 Section 12-820.03 applies to “an injury arising out of a plan or

design for construction or maintenance of or improvement to” a highway

“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

14

GLAZER V. STATE

CHIEF JUSTICE BALES, Dissenting in Part and Concurring in the Result

the plan or design.” “Maintenance” means “the establishment or

continuation in existence of” a highway, but “does not mean or refer to

ordinary repair or upkeep.” A.R.S. § 12-820(4). Because the statute

recognizes that injuries may arise from plans for maintenance or

improvement as distinct from plans for construction, it is inappropriate to

conclude that an injury is one “arising out of” a plan of construction merely

because the injury relates to existing highway conditions.

¶41 I would hold that an injury arises out of a plan for

construction only if the dangerous condition causing the injury is inherent

in the plan itself. If the 1967 design had contemplated the current

conditions (particularly traffic speed and volume) and had, consistent with

1967 standards, omitted median barriers, I would agree that § 12-820.03

might apply. A “plan or design for construction” necessarily makes certain

assumptions about a highway’s usage. If a design was “state of the art”

when prepared for those conditions, the State should be able to use the

defense if design standards later change. But a “state of the art” defense

should not apply when the highway is being used in substantially different

conditions than for which it was designed. (When conditions have

changed, the State might seek to invoke the affirmative defense by arguing

that its plans for the highway’s maintenance or improvement conform to

generally accepted standards; the State made no such argument here.)

¶42 The evidence, when viewed in favor of sustaining the jury’s

verdict, showed that the injuries to the Glazers did not result from any

dangerous condition inherent in the 1967 design. If the highway had

continued in existence under conditions contemplated when it was

designed and constructed, the particular segment would not have been

dangerously unsafe even though median barriers were lacking.

Conditions, however, changed in ways that were not contemplated by the

1967 plan. Traffic volume increased to about 55,000 vehicles daily, more

than three times the number the plan had projected for 1997. Speed limits

were raised to 75 miles per hour. The risks posed by these changes are

greater because on this particular stretch of highway, the median is hard-

pack and, unlike soft sand or rocks, is easily traversable. An out-of-control

vehicle can cross the median in seconds, leaving no time for a driver

traveling the opposite way to take evasive action.

¶43 This combination of circumstances – not any defect inherent in

the 1967 construction plan – has resulted in crossover accidents occurring on

15

GLAZER V. STATE

CHIEF JUSTICE BALES, Dissenting in Part and Concurring in the Result

this stretch of highway at a rate some twenty-nine times higher than the

statewide average. The Glazers presented evidence that if the State had

followed its own guidelines, it would have monitored the incidence of cross-

over accidents (ten occurred, resulting in six deaths, between 2003 and 2007).

If the State had done so, reasonable engineering standards would have

required installation of median barriers by 2000 or 2001. Had such barriers

been in place when the driver in this case lost control in heavy traffic, the

vehicle would not have shot across the median and crashed into the Glazers’

northbound vehicle, killing two people and injuring another. The State,

however, made no significant changes to this portion of the highway over

forty years.

¶44 Having heard this evidence, the jury was instructed, without

objection, that:

The State 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.

The jury found that the State had breached its duty by allowing an

unreasonably dangerous condition to exist and that its negligence caused

injury to the Glazers. The State has not challenged these findings on appeal.

¶45 The majority, unfortunately, accepts the State’s argument that

A.R.S. § 12-820.03 generally applies “even if material changes to travel have

rendered the roadway substandard,” ¶ 1, and that the statute applies to the

Glazers’ claim because median barriers were not included in the 1967 plan.

¶ 16. The majority’s holding allows the State to assert the statutory defense

merely because the original plan for construction was silent about

improvements that might be needed to ensure safe travel under current –

and substantially different - conditions. That the 1967 plan omitted median

barriers is not a sufficient reason, in my view, to conclude that the Glazers’

2007 injuries were ones “arising out of” that plan. The majority’s contrary

view effectively replaces the State’s duty to keep its highways reasonably

16

GLAZER V. STATE

CHIEF JUSTICE BALES, Dissenting in Part and Concurring in the Result

safe with a duty to warn the public that highways have become

unreasonably dangerous.

¶46 Section 12-820.03 does not apply here because the 2007

injuries did not result from any defect inherent in the 1967 construction

plan, but instead from the dramatically changed conditions on the I-10

highway. But if the injuries were ones “arising out of” the 1967 plan, the

State was not entitled to judgment as a matter of law because the conditions

were unreasonably dangerous and the State did not provide reasonably

adequate warnings. These conclusions comport with the jury’s findings,

the language of A.R.S. § 12-820.03, and our ninety-year recognition of the

State’s duty to keep its highways reasonably safe for travel. I concur in

affirming the trial court’s judgment.

17