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.

link to Morales

link to Campion

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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Personal injury settlements are personal and not community property unless the settlement includes damages for economic losses such as earnings or loss of consortium damages.  Husband had an unnecessary pacemaker surgery.  Husband and wife filed suit against the doctor, hospital, and pacemaker manufacturer and recovered $2 million in compensatory and $5.4 million in punitive damages against the pacemaker manufacturer.  (The trial court reduced a $60 million award for punitive damages.)  Case then settles for $6.6 million of which $2.2 million was attributable to personal injuries. (We round out these numbers but wonder how $2 million in compensatory damages became $2.2 million. The court also notes the math does not add up and $1.2 million is missing.)  Most of the funds were used to fund an annuity, and we guess this was structured to avoid taxes. Wife then files for divorce and argues she is entitled to some of the monies not specifically attributable to husband’s personal injury.  The annuity payments went to husband during his lifetime and then to wife for her lifetime.  When payments were made before the divorce, the funds were placed in a joint account. Husband argues the monies are all his as his wife’s interest in the funds was contingent upon his death and this arrangement was a postnuptial agreement. The court holds the underlying settlement agreement with the manufacturer does not provide a specific allocation of the settlement monies and the annuity itself is not a postnuptial agreement. The case is sent back to the trial court, and if the trial court cannot allocate, the court should go with the presumption of community property. We expect an actual settlement agreement between the two will happen before then.  As for the larger question as to whether punitive damages are community or separate property, the suggestion is to closely at the compensatory damage award and go from there. One point on style: Justice Montgomery’s use of footnotes is distracting and raise questions the court is not answering. The footnotes may be there to swat away the flies, but they cause our minds to wonder where they will land.

link to opinion