In this case the Supreme Court construes a statute against the plaintiff but finds a way – thanks to interesting tactics by the defendant — to preserve her large verdict.

Glazer’s decedents were killed and she was injured when a car crossed the median and hit theirs head-on. She sued the State because there was no median barrier. The defense was, under 12-820.03, that the lack of a barrier was state of the art when the road was built. The trial court refused to grant the State JMOL on that and the jury found for Glazer. The Court of Appeals affirmed.

Glazer argued, and those courts agreed, that the statute didn’t apply because she wasn’t arguing that the road was unsafe when built in 1967 but that it was unsafe when the accident happened in 2007. The State petitioned for review.

The statute says:

Neither a public entity nor a public employee is liable for an injury arising out of a plan or design for construction or maintenance 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 concludes, basically, that the statute means what it says. The claim did arise out of the original, barrier-less design. “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 that the State monitor all roads and change those that have arguably become substandard is just what the statute was intended to prevent. (That doesn’t apply to regular maintenance and repair, which the statutes specifically require.)

But the statue also requires the State to warn of unreasonably dangerous conditions. The court rules that under these facts Glazer’s claim could have gone forward on that basis. The State claimed that Glazer waived that by not arguing it to the jury (which seems a silly mistake until you start to think about what “suitable precautions” she could have proved the Glazers would have taken). “But the proponent of an affirmative defense . . . [is] required to prove . . . compliance with all aspects.” The State also, picking up on Glazer’s problem, argues that no warning would have enabled “suitable precautions” but it “failed to present any evidence to permit the jury to make that determination” (apparently the plaintiff’s approach lulled it into thinking it needn’t address the issue). The State did not ask for a new trial so the court can’t now give it one; the trial court’s ruling (though based on the wrong reason) was not error so the court affirms.

Justice Bales dissents from the first part of this, agreeing with the lower courts, but concurs with the second.

(link to opinion)