The court of appeals holds an employee contracting COVID-19 from a co-employee meets the statutory requirements of an “accident arising out of and in the course of employment.” The worker’s compensation statute has a separate provision for when an occupational disease is compensable which does not include the “ordinary diseases to which the general public is exposed.” But that does not preclude an employee from arguing a disease is an “accident.” The court acknowledges the legislature has addressed certain communicable diseases but because it has not enacted a statute for COVID-19 claims, the court reverts to construing whether this is an accident. Under prior case law, “disease” and “accident” are not mutually exclusive.  The court references a 1965 case involving a seamstress who contracted pulmonary emphysema from lint exposure. Reilly v. Indus. Commission, 1 Ariz. App. 12 (App. 1965) (“the law in Arizona is that when a condition has developed, not instantaneously, but gradually, over a period of time, resulting in a definite though unexpected injury or disease, which injury or disease is definitely work-connected, then said injury or disease is the result of an ‘accident’ within the terms of our Workmen’s Compensation Act, and is compensable.”). In this case neither the employee nor employer argued COVID-19 is an “occupational disease,” and the court cites Ford v. Indus. Comm’n, 145 Ariz. 509 (1985) (explaining that, when the condition at issue is a disease, “either party is entitled to require that the claim be administered” under the occupational disease provisions).  More explanation is needed here; a paragraph should not end a thought by citing a case that may suggest something different from what the parties agreed.

Thus, any other non-occupational disease may qualify as an accident. As backup the court cites a pneumonia case from a defective exhaust system, a case where Lyme disease was contracted, a case involving an allergic reaction and a case of hepatitis.  The court distinguishes a string of Valley Fever exposure cases because of the impossibility of showing causation. The court accepts because person to person tracing is possible and a claimant “will occasionally” be able to trace the disease to the workplace. Coupled with the language in Reilly that a disease must be “definitely work-related” one can see where experts and lawyers will clash. The court then deferred to the Industrial Commission’s factual determination showing the exposure was from a co-employee.  As to the employee’s death, the “arising out of” requirement is a causation requirement and may be met when workplace risk is a “contributing factor.” The court concludes: “This is a mixed risk case. [Employee’s] risk of work-related exposure from interacting with potentially infected co-workers in person combined with his underlying medical condition (he was pre-diabetic and immune-compromised after a kidney transplant) resulted –legally and medically—in his death from COVID-19.”

The legislature should have acted long before COVID-19 to clarify recurrent issues with worker’s compensation, diseases, and correlation with language of “accident,” “arising out of,” and “contributing factor.”  We end up with protracted litigation and much will depend on the generosity or lack of generosity of an ICA judge. One final note: the court begins this opinion with gravitas by reminding us of COVID-19’s toll. We would rather just see clarity and coherence. And, as to simple things, clerks and courts should have words flagged in their writing program. Too often we see “statue” for “statute.”

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In lawsuits alleging road design defects, a public entity is not liable if it can show the plan or design conformed to generally accepted engineering or design standards when constructed, and the public entity provides a reasonably adequate warning.  The immunity statute ARS 12-820.03 further states that if there is a disputed fact, the issue shall be resolved by a trial before a trial on damages. These two cases discuss this in more detail.  In Morales, a case filed against the State, Division 1 accepted a petition for special action questioning whether the statute was constitutional because the bifurcation mandate evades the judiciary’s rule making authority.  Division 1 holds the legislature can direct how claims may be brought against public entities, and there is no conflict between the statute and Rule 42.

In Campion, a wrongful case filed against the City of Tucson, Division 2 upholds the trial court trying the immunity defense first and not the entire liability case. The city won at trial. We are confused as to what distinction appellants were making between the liability case and immunity defense, and the court tells us many arguments were not properly developed on appeal. The distinction may have had something to do with the driver’s fault, but the court’s opinion continues with many other issues, and we lose further interest. As to discovery issues before trial, the court recognizes the significant discretion trial judges have in determining proportionality. During discovery, the appellants obtained some discovery on other accidents but wanted more. Then at trial, there was disagreement over whether the other accidents were substantially similar.  The trial court noted differences and had discretion whether to allow the evidence. On the other side, from the opening statement, the city presented evidence and argument as to the lack of prior incidents. The court emphasizes caution with Pak-Mor evidence, but appellant’s requested curative instruction did not accurately state the law. The court plods through arguments over post-accident video evidence, a federal highway report, cross-examination of expert and lack of reliance on the report, and the refusal of a jury instruction that the adjacent school had no legal duty. We are reminded not every perceived wrong is a fruitful reason for an appeal. But for the bifurcation issue, we would fault the court for designating this chore as an opinion.

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Billboards exist because they work.  (Lawyers use most of the available billboard space, and lest we forget, in 1977 Arizona lawyers John Bates and Van O’Steen brought lawyer advertising to a billboard near you.) The Arcadia Osborn Neighborhood and several of its members filed a special action against the City of Phoenix Board of Adjustment after the Board granted permission to Clear Channel to relocate three billboards onto the facade of a new building and make two of the billboards digital.  The central issue is whether the local neighborhood or any of its members has standing in court to challenge the Board’s decision.  The trial court said no, and the court of appeals agrees.  Generalized concerns of traffic safety and loss of aesthetic values are not sufficient for standing under either state or federal law. The court distinguishes and limits the holding in Scenic Ariz. v. City of Phoenix Bd. Of Adjustment, finding that decision relied upon the Arizona Highway Beautification Act. The Scenic Act situation is different because that billboard was subject to a specific statute, and these billboards are not. The court of appeals discusses representational standing, direct standing, and holds the basic premise of general public harm is not enough for standing. It is unclear, aside from scenic highways, what will be enough to provide standing. Cf., Johnson v City of Grants Pass, 50 F.4^th 787 (9^th Cir. Sept. 28, 2022 (holding class representatives have standing to challenge City’s anti-camping ordinance and, according to a dissent, giving license to lawlessness and the surrendering of parks and sidewalks to homeless camps). Moreover, adding a request for relief under the declaratory judgment action statute does not convert this special action into something else over which the court can control the Board.   Although billboards may be a minor problem when compared to the deterioration we see on our streets, we end with a few words from Ogden Nash.

I think that I shall never see,

A billboard lovely as a tree.

Perhaps, unless the billboards fall,

I’ll never see a tree at all. 

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