Opinion
2 CA-CV 2022-0075
05-09-2023
EDDIE J. LESTER JR., Plaintiff/Appellant, v. PIMA COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA, Defendant/Appellee.
Law Firm of Richard Luff LLC, Tucson By Richard Luff Counsel for Plaintiff/Appellant Struck Love Bojanowski & Acedo PLC, Chandler By Nicholas D. Acedo and Dana M. Keene Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20192043 The Hon. Gary J. Cohen, Judge
Law Firm of Richard Luff LLC, Tucson By Richard Luff Counsel for Plaintiff/Appellant
Struck Love Bojanowski & Acedo PLC, Chandler By Nicholas D. Acedo and Dana M. Keene Counsel for Defendant/Appellee
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vasquez concurred.
MEMORANDUM DECISION
GARD, JUDGE
¶1 In this negligence case stemming from a motor-vehicle accident, Eddie Lester appeals from the superior court's ruling granting summary judgment in Pima County's favor. The court concluded that the county had established the affirmative defense set forth in A.R.S. § 12820.03, which required a showing that Lester's injuries arose out of a plan or design for roadway construction, that the plan or design conformed to generally accepted engineering or design standards at the time it was prepared, and that the county gave a reasonably adequate warning of any unreasonably dangerous condition. For the following reasons, we affirm.
Although the statutory language has changed slightly since Lester filed his complaint, the change does not affect the outcome here. Compare A.R.S. § 12-820.03 (2019) with A.R.S. § 12-820.03 (2023). We therefore cite the statute's current version. See Bobrow v. Bobrow, 241 Ariz. 592, n.2 (App. 2017) ("We cite to the current version of applicable statutes or rules when no revision material to this case has occurred.").
Factual and Procedural Background
¶2 Because he is the non-moving party, we view the facts in the light most favorable to Lester. See Cliff Findlay Auto., LLC v. Olson, 228 Ariz. 115, ¶ 8 (App. 2011). On April 22, 2018, Lester was driving his motorcycle west on Snyder Road in Pima County when a passenger car pulled into the lane in front of him. In order to avoid a collision, Lester drove into the eastbound lane of Snyder and passed the car. The pavement markings on Snyder authorized westbound drivers to use the eastbound lane to pass traffic.
¶3 While in the eastbound lane, Lester also attempted to pass an all-terrain vehicle (ATV) that was in front of the passenger car. However, as Lester attempted his passing maneuver, the ATV initiated a left turn toward Preserve Creek Place, which intersected with Snyder. Lester collided with the ATV, resulting in physical injuries and damage to his motorcycle.
¶4 Lester sued multiple parties, including Pima County. Lester alleged, in part, that the county had breached its duty "to properly and safely engineer, install, and maintain signage and pavement markings" at the Snyder/Preserve Creek intersection, and that it had specifically failed to prohibit passing at that intersection and to warn of the intersection's danger.
The additional defendants were dismissed from the litigation for reasons not relevant to this appeal. Several additional claims against Pima County were also dismissed for reasons not material here, leaving only the negligence claim at issue.
¶5 Pima County moved for summary judgment, arguing, in relevant part, that it was not liable for any negligence based on the affirmative defense set forth in § 12-820.03 because Snyder's plan or design conformed with generally accepted engineering standards in effect when adopted; there was no unreasonably dangerous condition; and, even if there were an unreasonably dangerous condition, the county gave drivers a reasonably adequate warning thereof. The county supported its motion with opinions from Michael Blankenship, a civil engineer. Blankenship identified the Manual on Uniform Traffic Control Devices (MUTCD) as stating the standard of care for traffic-control devices. He explained that the pavement markings on the pertinent stretch of Snyder were "appropriately installed," that they were consistent with the MUTCD, and that the MUTCD did not require a no-passing zone at the intersection with Preserve Creek because there was no crash history at that location, nor were there sight-distance restrictions or special conditions. He further opined that the intersection "did not reveal any deficiencies, violations of applicable standards, or safety concerns," and noted the presence of two visible street signs that drew attention to the intersection.
¶6 In response, Lester offered an opinion from traffic engineering consultant Andrew Smigielski, who opined that Snyder "represents a special and hazardous condition" and that its pavement markings authorizing passing should have been removed when Preserve Creek was constructed. Smigielski further opined that the county's failure to remove the markings "fell below the standard of reasonable and competent Traffic Engineering operations and standards." Lester argued that the differing conclusions between Blankenship and Smigielski amounted to a genuine factual dispute precluding summary judgment.
¶7 The superior court granted Pima County's motion. The court interpreted Lester's argument as challenging the county's failure to upgrade Snyder's original plan based on changing road conditions. The court relied on Glazer v. State, 237 Ariz. 160, ¶¶ 19, 27 (2015), in which our supreme court held that § 12-820.03's affirmative defense remains available when evolving traffic patterns render a roadway's plan or design substandard and a public entity fails to adopt a superseding plan to correct the deficiencies. Id. ¶ 36. The superior court identified the only disputed issues as whether an unreasonably dangerous hazard existed and, if so, whether the county had adequately warned of that hazard. On those issues, the court found, without elaboration, that "no unreasonably dangerous hazard existed" and that, even if one did exist, "a reasonably adequate warning was given."
¶8 Lester moved to reconsider on several grounds. Relevant here, Lester argued that, in denying summary judgment, the superior court had mistakenly relied on the plan for Snyder as originally constructed, rather than on the plan for Preserve Creek's addition in 2009. To this end, he proffered-for the first time-schematics for the 2009 plan, as approved by the county. The county objected to Lester's new evidence, noting that it had disclosed the Preserve Creek schematics early in the litigation and that Lester could have attached them to his response to the summary-judgment motion.
¶9 The superior court denied the motion to reconsider in relevant part. The court refused to consider the 2009 plan schematics, along with Lester's related arguments, because Lester offered them for the first time in support of his motion to reconsider. The court reaffirmed its prior application of Glazer, concluding Lester's argument that the county was required to update Snyder by removing the pavement markings authorizing passing violated that case's "rule" and was thus "legally impermissible."
The superior court granted the motion to the extent it challenged the court's determination, which is not at issue in this appeal, that Lester had failed to serve a notice of claim that complied with A.R.S. § 12-821.01.
¶10 The superior court again identified the only relevant issue as whether the county had given a reasonably adequate warning of any unreasonably dangerous condition. On that issue, the court expanded on its prior analysis and concluded that Smigielski had not articulated any specific hazardous condition other than the passing zone, that he had not characterized that zone as an "unreasonably dangerous hazard," and that he had not explained what type of warning could or should have been given of any such hazard. The court thus concluded that Lester had failed to proffer evidence to create a factual dispute on these points.
¶11 This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
Discussion
¶12 Lester argues that the superior court incorrectly applied
§ 12-820.03 in granting summary judgment in Pima County's favor. We review de novo a superior court's ruling granting summary judgment. See First Am. Title Ins. Co. v. Johnson Bank, 239 Ariz. 348, ¶ 8 (2016). We will affirm if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. See Ariz. R. Civ. P. 56(a); Green Cross Med., Inc. v. Gally, 242 Ariz. 293, ¶ 5 (App. 2017).
¶13 Because § 12-820.03 is an affirmative defense, Pima County bears the burden of proof on each element. See Pfeil v. Smith, 183 Ariz. 63, 65 (App. 1995). When a party carrying the burden of proof seeks summary judgment, that party must provide "undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element." Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, ¶ 18 (App. 2012) (quoting Comerica Bank v. Mahmoodi, 224 Ariz. 289, ¶ 20 (App. 2010)); see also Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶ 14 (App. 2008) (a party moving for summary judgment "must come forward with evidence it believes demonstrates the absence of a genuine issue of material fact and must explain why summary judgment should be entered in its favor").
¶14 If the moving party makes this initial showing, "the burden then shifts to the non-moving party to present sufficient evidence demonstrating the existence of a genuine factual dispute as to a material fact." Nat'l Bank of Ariz., 218 Ariz. 112, ¶ 26. "[T]he non-moving party must call the court's attention to evidence overlooked or ignored by the moving party or must explain why the motion should otherwise be denied." Id. The moving party, however, retains the ultimate burden of persuasion that summary judgment is warranted. Id. ¶ 16.
¶15 A dispute of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must refrain on summary judgment from weighing witness credibility or the quality of the evidence, and must not "choose among competing or conflicting inferences." Orme Sch. v. Reeves, 166 Ariz. 301, 311 (1990).
¶16 Section 12-820.03(A) provides:
A public entity or a public employee is not liable for an injury arising out of a plan or design for construction or maintenance of or improvement to transportation facilities, including 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 and the public entity or public employee gives to the public a reasonably adequate warning of any unreasonably dangerous condition.Section 12-820.03 thus requires a public entity to prove three elements: (1) that the plaintiff's injury arose out of a plan or design for the improvement, construction, or maintenance of a roadway; (2) that the plan or design, at the time it was prepared, conformed to generally accepted engineering or design standards; and (3) that the public entity gave a reasonably adequate warning of any unreasonably dangerous condition. Glazer, 237 Ariz. 160, ¶ 13.
Lester's Injuries Arose Out of a Roadway Plan or Design that Conformed to Accepted Engineering or Design Standards
¶17 We address the first and second statutory elements together because Lester's challenges to them are intertwined. Lester does not dispute that his injuries arose from a roadway plan or design; he instead argues that the superior court erred by concluding that his injuries arose from Snyder's original plan or design, rather than from the 2009 plan to add the intersection at Preserve Creek. He therefore contends that the court erred by determining that the county was not required to update Snyder's original plan and invoking Glazer to dispose of the first and second statutory elements. Pima County responds that Lester did not timely argue that the 2009 plan controlled and that, in any event, the 2009 plan was not a plan for Snyder but for an unrelated subdivision, of which Preserve Creek was a part.
¶18 Regardless of which plan controlled, the parties generally agreed in their briefing below that Lester's injuries arose from the combined existence of Snyder's pavement markings authorizing passing and the intersection with Preserve Creek. Pima County's expert, Blankenship, specifically assessed the location of the accident, and he relied on the 2009 version of the MUTCD to identify the relevant engineering standards and to opine that the Snyder/Preserve Creek intersection satisfied them. Lester's expert, Smigielski, likewise relied on the 2009 MUTCD to opine that the creation of Preserve Creek required corresponding changes to Snyder.
¶19 The parties thus do not dispute-and Lester concedes-the first statutory prong's existence, and the question centers on which plan applies. Because we must view the facts in the light most favorable to Lester, see Cliff Findlay Auto., LLC, 228 Ariz. 115, ¶ 8, we assume for the sake of this decision that potential liability for Lester's injuries should be determined under the 2009 plan to create Preserve Creek.
We do not, however, consider the 2009 plan schematics, which Lester submitted with the motion to reconsider and which were excluded by the superior court. Along these same lines, we reject Pima County's request that we limit our review to whether the court abused its discretion by denying Lester's motion to reconsider. The county reasons that Lester's argument on appeal depends entirely on the 2009 plan's schematics. But Lester contends that the superior court erroneously identified the operative plan in its original order granting summary judgment, and he does not clearly ask us to review the motion to reconsider's denial. To the extent Lester in fact challenges that denial, we find no abuse of discretion. See Tilley v. Delci, 220 Ariz. 233, ¶ 17 (App. 2009) ("The superior court was not required to accept and examine evidence presented to it for the first time in connection with [a] motion for reconsideration.").
¶20 Turning to § 12-820.03(A)'s second element-whether the 2009 plan conformed to governing engineering or design standards at the time of its preparation-we find no genuine issue of material fact. In support of the county's motion for summary judgment, Blankenship reviewed the accident location as well as numerous case documents and traffic standards, including the MUTCD from 2009 and its Arizona Supplement. Blankenship opined that there were no "deficiencies, violations of applicable standards, or safety concerns" with the pavement markings at the intersection of Snyder and Preserve Creek. He specifically stated that "[t]he MUTCD does not prohibit passing zones at intersections." This evidence was sufficient to satisfy the county's initial burden as to the second statutory element, and the burden then shifted to Lester to establish a genuine factual dispute. See Wells Fargo Bank, N.A., 231 Ariz. 209, ¶ 21; Nat'l Bank of Ariz., 218 Ariz. 112, ¶ 26.
¶21 Smigielski did not dispute that the MUTCD establishes the genuinely accepted engineering or design standards for § 12-820.03's purposes, and he admitted that the MUTCD does not prohibit passing zones at intersections unless an engineering study establishes that a special condition exists. However, he opined that Snyder had a "special and hazardous condition," that passing maneuvers should therefore have been restricted, that the "lane markings along Snyder . . . fell below the standard of reasonable and competent Traffic Engineering operations and standards," and that those markings "should have been removed" when Preserve Creek was added.
¶22 Section 3B.02.03 of the MUTCD states, "on two-way, two- or three-lane roadways where center line markings are installed, no-passing zones shall be established at vertical and horizontal curves and other locations where an engineering study indicates that passing must be prohibited because of inadequate sight distances or other special conditions." When deposed, Smigielski admitted that there were no vertical or horizontal curves at the intersection of Snyder and Preserve Creek, that there were no sight distance inaccuracies at the intersection, and that he did not do an engineering study. He likewise did not claim, and the record does not reflect, that any other expert conducted an engineering study that revealed the existence of a "special condition." And in addition to conceding that the MUTCD applied and allowed the pavement markings at issue, Smigielski identified no generally accepted engineering or design standards that prohibited passing at intersections.
¶23 Smigielski thus conceded at his deposition that the relevant engineering standards did not affirmatively prohibit passing at the accident location and that he did not undertake the prerequisite study to determine whether a special condition existed. We therefore conclude that Smigielski's opinion is insufficient to establish a genuine issue of material fact to defeat summary judgment. See Menendez v. Paddock Pool Constr. Co., 172 Ariz. 258, 269 (App. 1991) (expert opinion did not create genuine issue of material fact when opinion was "wholly conclusory in substance and inconsistent with the alleged condition"); see also State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 26 (App. 1986) ("Conclusory statements are simply insufficient to raise any genuine issues of material fact ...."). We conclude that there is no genuine issue of material fact as to the second element of § 12-820.03.
Unreasonably Dangerous Condition
¶24 Finally, there is no genuine issue of material fact as to the third element of § 12-820.03(A). This element applies only if there is an "unreasonably dangerous condition," in which case a public entity must give a reasonably adequate warning thereof. § 12-820.03(A).
¶25 The county met its initial burden of demonstrating the absence of a genuine and material factual issue. See Wells Fargo Bank, N.A., 231 Ariz. 209, ¶ 17. As discussed above, Blankenship concluded that there were no "deficiencies, violations of applicable standards, or safety concerns" at the accident location. He further stated that the accident location's reported crash history does not suggest that the location presents a "hazardous condition."
On the record before us, during the ten-year period from 2009 through 2018, there were no other reported vehicle accidents at this location besides Lester's accident.
¶26 Lester did not, in response, carry his burden of presenting sufficient evidence demonstrating the existence of a genuine factual dispute on this point. See Nat'l Bank of Ariz., 218 Ariz. 112, ¶ 26. Smigielski did not address whether the accident location was an unreasonably dangerous condition. Instead, he stated only that Snyder presented "a special and hazardous condition and passing maneuvers should have been restricted." He further opined that the "narrow shoulder" at the crash location made the road "very dangerous." Smigielski noted that Snyder: (1) was a "relatively high-speed roadway (45 mph)"; (2) had a "large number of conflict points created by many closely spaced intersections with adjacent roadways and residential driveways"; (3) was a "bike and equestrian route"; (4) had a narrow shoulder; (5) advised motorists to "watch for animals"; and (6) was "rolling [with] multiple wash crossings."
¶27 During his deposition, Smigielski was questioned regarding each of these conditions and admitted that many of them concerned other portions of the roadway and were not present at the accident location. Specifically, he conceded that the "clear zone," which is "the distance to an obstruction" that should increase with the "designed speed of the roadway," was not an issue at the location of the accident, despite the speed limit. The superior court relied on Smigielski's admission that Melpomene Way was the only "closely spaced intersection on Snyder Road between the Catalina Highway and Preserve Creek." However, the court found based on Lester's affidavit that he had passed Melpomene before initiating his passing maneuver. Smigielski also identified only one bicycle warning sign in the vicinity, which was located west of the accident location. Smigielski could not recall the location of the animal-crossing signs or if any were in the vicinity of the accident location, and he had no data or information to suggest there was in fact a steady migration of animals at the accident location. He admitted that he did not recall any wash crossings east of and prior to the accident location and that there were no vertical or horizontal curves in the road at the accident location. Finally, Smigielski also stated that there were no sight issues at the accident location and that he did not look at the crash history for this location.
¶28 After the concessions at his deposition, the only condition that Smigielski described that existed at the location of the accident was the "narrow shoulder." But he did not explain how or why the narrow shoulder made the accident location an unreasonably dangerous condition. Although he explained that a narrow shoulder "limits the amount of space" a driver has "to avoid [an] incident," he acknowledged that Lester would not have been "passing in the shoulder area." He also did not provide data to establish that narrow shoulders make a road unreasonably dangerous. Given the above, we conclude that there is no genuine issue of material fact that an unreasonably dangerous condition existed at the accident location. See Menendez, 172 Ariz. at 269; Corbin, 151 Ariz. at 26 . Accordingly, no warning was required at that location.
Because we affirm the superior court's conclusion as to the nonexistence of an unreasonably dangerous condition, we need not address either the superior court's conclusion that there was a reasonably adequate warning given nor Pima County's argument that Lester waived and abandoned any claim that the warning was inadequate.
Disposition
¶29 There is no genuine issue of material fact as to the application of § 12-820.03, and Pima County is entitled to judgment as a matter of law. For the foregoing reasons, we affirm the superior court's order granting summary judgment in favor of Pima County.