THIS OPINION HAS BEEN VACATED.

This tort case discusses the admissibility of remedial measures under Rule 407.

Plaintiffs’ decedent was killed in a car crash near an intersection on Highway 60. They sued the State for negligent design of the roadway but lost at trial. They appealed, challenging (insofar as the published opinion is concerned) the trial court’s exclusion of evidence that, after the accident, the State installed additional warning signs at the intersection.

Plaintiffs argued (1) that the new signs didn’t constitute “remedial measures” because the State didn’t know about the accident when it installed them, (2) that, even if they did, the trial court should have allowed the evidence under the “other purpose” exception in order to rebut the State’s comparative negligence allegations and to impeach the State’s witnesses regarding knowledge of the danger. An equally interesting issue is one that Plaintiffs didn’t quite realize, it seems, that they were making: that a change of conditions could allow admission of remedial-measures evidence.

The Court of Appeals affirmed.

There is a split of authority in other states on whether a remedial measure must be taken in response to some specific event. This opinion holds that there is no such requirement because the rule doesn’t say so; it refers simply to measures  taken “after an event . . . which if taken previously, would have made the event less likely to occur.”  The court also made the policy argument – that people would be reluctant to make things safer if the rule were narrowed.

The evidence also can’t come in to rebut comparative negligence, because the object of that would be to increase the State’s degree of fault. In other words, the evidence would bear on the State’s negligence, which is what the rule prohibits.

Plaintiffs also argued that the evidence should come in to rebut the State’s “open and obvious” defense. The court pointed out that “open and obvious” is part and parcel of comparative negligence. (This has  been true for a long time; most talk about “open and obvious” is obsolete nonsense, proof of how fond is the legal mind of antique formulae that sound like they must mean something.)

Reading between the lines, “open and obvious” seems to be how Plaintiffs characterized something the State argued rather than a separate defense that the State tried to assert. Apparently,  the Plaintiffs got mixed up by a federal case that allowed evidence of remedial measures because they had changed conditions so much that that plaintiff could no longer rebut the defendant’s argument – which, in that case, was that the condition had been open and obvious.

The court addressed the argument that a change of condition could allow evidence of remedial measures by saying that the condition in this case hadn’t significantly changed – save for the addition of signs to the existing roadway – and because other evidence was available to the Plaintiffs to rebut the State’s assertion (namely, a witness, photographs, and an accident report all indicating that visibility at the intersection was limited, rebutting the State’s argument that it wasn’t).

Finally, the court pointed out that to allow evidence of remedial measures to prove that the State knew of the danger would – since knowledge of the danger is an element of liability – allow it to prove evidence of negligence (which is, again, precisely what the rule prohibits).

We haven’t seen the briefs, so you may take it as coincidence that we are reminded just now how difficult it can be for appellate courts to deal with cases the appellant has not briefed well.

A special-action opinion dealing with how Rule 42(f) – notice of change of judge – works in a consolidated action. This is one of those cases in which the petitioner had a good enough argument that the court felt the need to write an opinion explaining why he was wrong.

Huerta appeared in the probate of his father’s estate and changed the judge. He later sued the P.R. for converting estate assets, which action was consolidated with the probate. He then filed another change of judge. The court denied it, reasoning that he’d already had his one peremptory change.

Huerta petitioned for special action; the court took jurisdiction, denied relief, then issued this opinion explaining why.

Huerta had argued that consolidation does not “merge the cases into a single cause, or change the rights of the parties.” He argued that because that’s what Yavapai County v. Superior Court, 13 Ariz. App. 368 (1970) says. But Rule 42(f) says that “each action, whether single or consolidated, shall be treated as having only two sides.” The court ruled that the “single or consolidated” language means that “when, for whatever reason, there are multiple parties in a case, absent a showing of hostile interests within a “side” pursuant to subpart [42(f)](1)(A), there are only two “sides” and each may exercise only one peremptory change of judge.”

What this seems to say is that since Huerta’s position in the lawsuit was consistent with his position in the probate action, he was on the same “side” as himself. This suggests a rather clunky train of thought on the court’s part but the outcome and the lesson of the case are clear enough.

The opinion stains itself, though, by citing in a footnote the infamous case of Marvin Johnson, P.C. v. Myers, 184 Ariz. 98 (1995). In that case the court not only reversed seventy years of precedent but pretended that it didn’t exist, instead implying that Johnson’s lawyers were idiots – all, rumor has it, for professional and personal reasons having little  to do with the facts of the case. Its holding seems innocuous and might even be right but Marvin Johnson is a poster-child for much that can be wrong about judicial opinions. Why the court cites the case at all is mysterious, since the same footnote that does so admits that Huerta did not raise the only issue to which it might have been pertinent.

If you want fees, be careful to follow the rules.

The Kings sued Titsworth for breath of contract. They lost. Titsworth moved for a fee award under 12-341.01. Rule 54(g) requires that such a request be made in the pleadings but his Answer (filed pro se and not amended when he got a lawyer) didn’t. The trial court awarded him fees anyway; the Court of Appeals reversed.

The court goes to some lengths to justify its conclusion, pointing out that the rule was amended in 1999 specifically to add the requirement of a request in the pleadings, that a motion (for a fee award) isn’t a pleading, that it has to interpret rules according to the intent shown by their language, and that there is a similar rule in the ARCAPs. The opinion also explains that the policy underlying the statute supports it because that policy includes promoting the settlement of disputes, and if you don’t tell people ahead of time that there is a statute out there that allows a fee award then they will be “deprived” of the opportunity to figure out whether they should settle the dispute. (This nonsense comes from a couple of Arizona Supreme Court cases talking about appellate rules, so you can’t blame Division One for it entirely.)

Why did the court use so much time, effort, and pages – and publish it (resolving other issues in the case by memo) – to say that the rule means what it says? Maybe its just the inefficient allocation of attention typical of our appellate courts. Or maybe somebody was feeling a bit guilty about the fact that the statute itself doesn’t require a request in the pleadings. When can a court rule condition a statutory right? We bet you can find cases about that – but Titsworth apparently didn’t mention it, so this isn’t one of them.