Ochoa v. State

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CARLOS OCHOA, et al., Plaintiffs/Appellants,

v.

STATE OF ARIZONA, Defendant/Appellee.

No. 1 CA-CV 22-0713
FILED 10-31-2023

Appeal from the Superior Court in Maricopa County
No. CV2017-011933
The Honorable Michael W. Kemp, Judge
The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Plaintiffs/Appellants

Ortega Law Firm, P.C., Phoenix
By Daniel R. Ortega, Jr.
Counsel for Plaintiffs/Appellants

Lewis and Lewis, Trial Lawyers, PLC, Scottsdale
By Robert K. Lewis, Amy M. Lewis
Counsel for Plaintiffs/Appellants
Arizona Attorney General’s Office, Phoenix
By Christopher B. Davis, Rebecca A. Banes
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Chief Judge David B. Gass joined.

B R O W N, Judge:

¶1 After the death of their son, Carlos Ochoa and Taydee Ibarra
(“Plaintiffs”) filed this wrongful death action against the State of Arizona
for breaching its duty to maintain safe roadways. Plaintiffs appeal the
superior court’s bifurcation of their trial, and the denial of their motion for
judgment as a matter of law and motion for new trial following the jury’s
verdict in favor of the State on its immunity defense. For the following
reasons, we affirm.

BACKGROUND

¶2 In 2013, the Arizona Department of Transportation (“ADOT”)
finished construction of Fain Road (also called State Route 89A Spur), a
four-lane, controlled-access highway in Yavapai County. The highway
included a median separating the directions of travel. As the highway was
being built, construction crews created berms, or temporary crossovers,
spanning the median to facilitate their work. After completion, several of
those crossovers remained. ADOT maintenance crews and the Department
of Public Safety (“DPS”) employees noticed the general public had been
using those crossovers, and DPS asked ADOT to install emergency
crossovers, which are intended for use by emergency and maintenance
vehicles only, on Fain Road.

¶3 ADOT then established two emergency crossovers, which
were completed by September 2013. ADOT did not install any signs
instructing motorists that the crossovers were reserved for emergency
vehicles or not usable for U-turns, opting to wait and see if such signs were
necessary. For three years after it created the emergency crossovers, ADOT
received no reports or indications that motorists were using the emergency
crossover at issue here improperly.

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¶4 On the night of August 24, 2016, Jeri Scott mistakenly turned
onto Fain Road. Unsure of her whereabouts, she was looking for an
emergency crossover to get her bearings and locate a mile marker. She
slowed in the left-hand lane to access the crossover and was rear-ended by
a car driven by Plaintiffs’ son. He suffered fatal injuries from the collision.

¶5 Plaintiffs sued the State in 2017 on counts of negligence and
gross negligence, claiming the State failed to (1) properly design or
construct the highway, and (2) provide reasonably adequate warnings and
signage of the crossover. The State answered by raising several affirmative
defenses, including immunity under A.R.S. § 12-820.03, which states:

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 . . . 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.1

¶6 After unsuccessfully seeking summary judgment, the State
moved to bifurcate the trial under A.R.S. § 12-820.03(B), which requires the
superior court to hold a separate trial to assess liability if there is “a genuine
issue of material fact” as to whether the State can claim the affirmative
defense in § 12-820.03(A). Plaintiffs opposed the motion, arguing
subsection B violates the separation of powers doctrine of the Arizona
Constitution by conflicting with Arizona Rule of Civil Procedure (“Rule”)
42(b). The superior court granted the State’s motion, finding that applying
the statute did not require the court “to follow a procedure inconsistent
with [Rule 42].” Though the State did not request a separate trial under
Rule 42, the court also found that bifurcation was warranted under Rule 42
alone, because the State would suffer prejudice. The matter proceeded to a
jury trial solely on whether the State met the elements required for the
§ 12-820.03(A) defense.

1 The current version of § 12-820.03(A) differs slightly from the
version in effect at the time of the collision. However, because the changes
do not materially change the requirements of the affirmative defense, we
cite the current version of the statute.

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¶7 At trial, the State presented testimony from John Litteer, a
regional traffic engineer from ADOT. Litteer discussed the history of the
Fain Road construction, noting he approved DPS’ request for the
installation of the emergency crossover at issue. Litteer also testified that
the Arizona Roadway Design Guidelines (“Guidelines”), created by ADOT
using input from engineers, included design criteria for emergency
crossovers, and that ADOT’s maintenance crews followed that process in
establishing this crossover. As to the lack of signage, Litteer described
ADOT’s general practice of “incremental change” to see if any signs would
be necessary for the crossover, and because he never received reports after
the construction of the crossover that motorists were improperly using it,
ADOT never saw a need to provide signage for the crossover. Litteer also
testified that signing would draw motorists’ attention to the crossover,
which ADOT wanted to avoid.

¶8 The State also presented testimony from Andrew Smigielski,
a traffic engineer, and Thomas Brannon, another professional engineer and
expert in traffic and roadway maintenance. Smigielski explained the
requirements of the Manual on Uniform Traffic Control Devices
(“MUTCD”) regarding signage and concluded that the emergency
crossover did not require a sign instructing drivers not to use it. Brannon’s
testimony revisited the Guidelines, including their specific criteria for
emergency crossovers, and he opined that the crossover in this case met the
Guidelines’ standards. After the State rested, Plaintiffs unsuccessfully
moved for judgment as a matter of law under Rule 50.

¶9 Plaintiffs presented testimony from Tony Voyles, a civil
engineer. Voyles believed the crossover created conflict points by giving
drivers the option to cross the median regardless of ADOT’s intent. He
opined that the crossover required formal engineering review that was
never conducted, and that the MUTCD required posting regulatory
signage. Plaintiffs played portions of a deposition by Lev Derzhavets, a
professional engineer specializing in road design, who concluded that the
crossover or “turnaround” lacked the detail or planning standard for such
features, and that the crossover did not meet ADOT’s own standards.
Plaintiffs’ counsel also read a deposition of Michael Kunzel, an accident
reconstructionist, who discussed the potential danger presented by drivers
turning left from a highway.

¶10 Answering three special interrogatories related to the
§ 12-820.03(A) defense, the jury found: (1) there was a plan or design for the
construction of the emergency crossover; (2) the plan or design conformed
to generally accepted engineering or design standards; and (3) the

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crossover did not present an unreasonably dangerous hazard. Plaintiffs
renewed their motion for judgment as a matter of law, asserting the State
failed to prove any of the § 12-280.03(A) requirements. Alternatively,
Plaintiffs sought a new trial on several grounds, including that the jury’s
verdict was against the weight of the evidence. The superior court denied
both motions, and Plaintiffs timely appealed. We have jurisdiction under
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶11 Plaintiffs argue (1) the superior court’s bifurcation of the trial
was made under an unconstitutional statute, (2) the State was not entitled
to immunity as a matter of law, and (3) the jury verdict was against the
weight of the evidence.

A. Bifurcation

¶12 Plaintiffs contend the mandatory bifurcation provision in §
12-820.03(B) unconstitutionally encroaches on our supreme court’s
procedural rulemaking authority under Article 6, Section 5 of the Arizona
constitution, and the superior court’s bifurcation here was erroneous. We
review a court’s decision to bifurcate a trial under Rule 42(b) for an abuse
of discretion, Morley v. Superior Court., 131 Ariz. 85, 87 (1981), and we will
affirm the court’s decision if correct for any reason, City of Phoenix v. Geyler, 144 Ariz. 323, 330 (1985). We generally prefer to resolve cases without
reaching constitutional issues. In re U.S. Currency in the Amount of
$315,900.00, 183 Ariz. 208, 211 (App. 1995).

¶13 We need not address whether A.R.S. § 12-820.03(B) is
unconstitutional because the superior court relied on Rule 42 as providing
alternative grounds for bifurcation. Rule 42(b) permits trial judges to order
separate trials of one or more issues “[f]or convenience, to avoid prejudice,
or to expedite and economize.” Here, the court explicitly found that a
separate trial on the applicability of § 12-820.03(A) was necessary, as the
“State would suffer prejudice” absent bifurcation. Plaintiffs do not contest
the superior court’s finding of prejudice. Instead, they argue the court’s
ruling under Rule 42 was nothing more than “impermissible speculation”
because § 12-820.03(B) required bifurcation regardless of the court’s
decision under Rule 42. We disagree.

¶14 The superior court did not speculate as to nonexistent
circumstances in deciding whether the State would suffer prejudice; it
considered the facts and circumstances of the case. Indeed, by finding
prejudice, the superior court performed the exercise Rule 42 deems

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necessary in deciding whether to bifurcate. Plaintiffs refer to the bifurcation
as a “liability-ending gift,” but they do not explain how their case was
prejudiced by the court’s bifurcation ruling. And though the State sought
bifurcation only under § 12-820.03(B), we cannot say the court’s
determination that bifurcation was justified under Rule 42(b) is an abuse of
discretion. See Geyler, 144 Ariz. at 330 (recognizing an appellate court’s
obligation “to affirm where any reasonable view of the facts and law”
supports the superior court’s ruling). At bottom, if the statute were
unconstitutional, as plaintiffs suggest, and the procedural rule stood in its
place, the superior court’s decision founded on Rule 42 would be valid.
Absent any suggestion in the record that the superior court did not regard
its finding of prejudice as correct, we cannot treat that ruling as illusory.

B. Judgment as a Matter of Law

¶15 Plaintiffs argue the superior court erred in denying their
renewed motion for judgment as a matter of law. A judge should grant
such a motion if “the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis” to find in the non-moving party’s favor.
Ariz. R. Civ. P. 50(a)(1). Judgment under Rule 50 is appropriate when “the
facts produced in support of the claim or defense have so little probative
value, given the quantum of evidence required, that reasonable people
could not agree with the conclusion advanced by the proponent of the claim
or defense.” Warne Invs., Ltd. v. Higgins, 219 Ariz. 186, 194, ¶ 33 (App. 2008).
We review the denial of a Rule 50 motion de novo, Glazer v. State, 237 Ariz.
160, 167, ¶ 29 (2015), viewing the evidence and all reasonable inferences in
favor of the non-moving party, Dawson v. Withycombe, 216 Ariz. 84, 95, ¶ 25
(App. 2007).

¶16 Under § 12-820.03(A), the State must prove three elements: (1)
the injury arose from a plan or design for a roadway feature; (2) that plan
or design conformed with generally accepted engineering principles
contemporaneous with preparation of the plan or design; and (3) if there is
an unreasonably dangerous hazard, the state provided a “reasonably
adequate warning.” Glazer, 237 Ariz. at 164, ¶ 13. Plaintiffs argue the State
failed to prove any of these three elements.

1. Plan or Design

¶17 Asserting that the State “never planned or designed the
median crossover,” and that the place where the fatal collision occurred was
merely a “leftover median crossover area,” Plaintiffs contend there was
never a plan or design from which the injuries to their son could have

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arisen. They point to testimony presented by their experts and the State’s
ADOT witness, who acknowledged the emergency crossover lacked the
standard engineering detail seen in typical crossovers, and that the
crossover here was created over the top of the “makeshift” crossover left in
place when the highway was constructed.

¶18 In Glazer, 237 Ariz. at 164, ¶ 15, our supreme court explained
that “[a] ‘plan’ can be a ‘method of acting, doing, or proceeding’ or ‘a design
or scheme of arrangement.’” A design, on the other hand, is a “combination
of details or features or a plan for form and structure.” Id. (cleaned up). We
apply those definitions here.

¶19 The evidence presented at trial contradicts Plaintiffs’
assertion that the emergency crossover was nothing more than a “leftover”
from previous construction. Though the State created the emergency
crossover at issue on top of one of the original crossovers built during
construction, the State sent maintenance crews to top that area with
recycled asphalt millings. The ADOT witness testified he personally
approved DPS’ request for emergency crossovers and instructed
maintenance personnel to coordinate with DPS. The State introduced a
report showing an ADOT maintenance supervisor approved the labor and
materials used to construct the crossover. The same witness also indicated
maintenance crews built it in conformance with the design criteria in the
Guidelines, and it was constructed under ADOT’s standard pattern of
conduct for building emergency crossovers. Thus, reasonable jurors could
infer that the State had a method for creating emergency crossovers and
followed that method for the crossover at issue.

¶20 Though the State never introduced formal schematics or
drawn plans for the crossover, we do not read the broad definitions of
“plan” or “design” analyzed in Glazer to require that level of detail. Instead,
the State only needed to prove that it had a “method of acting, doing, or
proceeding” or that the emergency crossover was made pursuant to some
“combination of details or features.” Id.

¶21 Plaintiffs also assert the State failed to prove there was a
specific plan for not placing a warning or regulatory sign at the emergency
crossover. However, the State’s ADOT witness explained that the
department had a general practice of “incremental change,” and would
observe the roadway feature to see if a sign was necessary. And because
ADOT never received information that the crossover was being improperly
used, it did not determine that any sign discouraging its use was necessary.
Though there was no evidence the State separately considered whether this

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emergency crossover required a specific sign, nothing in § 12-820.03(A), as
construed in Glazer, imposes such a requirement. The testimony presented
showed the State had a regular method of acting to decide whether to add
signage, and it followed that method in this case.

2. Generally Accepted Engineering Standards

¶22 Plaintiffs argue the State could not meet the second element
of the § 12-820.03(A) defense, which requires that any plan or design must
conform “to engineering or design standards generally accepted when the
plan or design was prepared.” Glazer, 237 Ariz. at 164, ¶ 13. Plaintiffs
reiterate that since there was no “plan or design,” the crossover could not
meet any contemporaneous design standards. But assuming there was a
plan or design, Plaintiffs point to their engineering expert (Voyles), who
opined that the State’s failure to have the crossover reviewed by an
engineer was contrary to generally accepted engineering practices. Because
Voyles agreed that this crossover “affect[ed] the operational movement of
the roadway” by adding a crossover which drivers could enter, he
concluded that generally accepted engineering principles required some
form of engineering review. In his view, the plan to add the crossover
required an “appropriate plan sheet” to document the change.

¶23 Plaintiffs, however, overlook the conflicting testimony
presented at trial. Brannon testified that the Guidelines were “the gold
standard” for transportation-related maintenance engineers and crews, and
that the Guidelines were among the types of resources generally relied
upon in the industry. Along with Litteer, Brannon also testified about §
405.1 of the Guidelines, which applies specifically to emergency crossovers.
As Brannon noted, the Guidelines require only three criteria for emergency
crossovers: (1) that they are unpaved; (2) acceleration and deceleration
lanes are not required; and (3) they must not be located within half a mile
of an exit or entrance ramp. The emergency crossover met these
requirements.

¶24 The right to assess the credibility of witnesses and weigh
evidence belongs to the jury, and in reviewing the denial of a renewed
judgment as a matter of law, it is not our place to reweigh that testimony.
Dupray v. JAI Dining Servs. (Phoenix), Inc., 245 Ariz. 578, 582, ¶ 11 (App.
2018). The State presented evidence, through expert testimony, that the
crossover met criteria required by generally accepted engineering
standards.

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3. Unreasonable Hazards

¶25 Concerning the final element of the roadway immunity
defense, Plaintiffs argue the evidence at trial established that the emergency
crossover was an unreasonably dangerous hazard. Plaintiffs’ argument is
supported by their witnesses’ opinions regarding the danger the crossover
presented. But that argument fails to account for the State’s evidence to the
contrary. The ADOT witness testified he had not received reports of
motorists using the emergency crossover after ADOT built it, and the
crossover did not run the risk of creating additional conflict points with
traffic because it was not something the traveling public should have, or
was known to, use. Though Plaintiffs’ witnesses disagreed with that
assessment, Plaintiffs have not shown how a jury would be unable to
reasonably believe the State’s witnesses. The court therefore properly
denied the motion for judgement as a matter of law. See Glazer, 237 Ariz. at
167, ¶ 32 (“Although evidence supported a finding that the lack of a median
barrier did not create an unreasonably dangerous hazard, other evidence
permitted the opposite conclusion.”).2

C. Motion for New Trial

¶26 Plaintiffs moved for a new trial on several grounds, including
that the evidence did not support the jury’s answers to the special
interrogatories. On appeal, the only ground raised is the sufficiency of that
evidence. We will reverse the denial of a motion for new trial on the
grounds that the verdict is against the weight of the evidence only if the
verdict “reflects a manifest abuse of discretion given the record.” Styles v.
Ceranski, 185 Ariz. 448, 450 (App. 1996). We will affirm “if any substantial
evidence could lead reasonable persons to find the ultimate facts sufficient
to support the verdict.” Id. For the reasons discussed above, we conclude
the State provided sufficient evidence for the jury to reach the conclusion

2 The State also elicited testimony at trial that the solid yellow line
separating the highway from the crossover was a “reasonably adequate
warning” to motorists that they should not use the crossover. The superior
court found that evidence was sufficient to meet the State’s burden of
proving the affirmative defense. But evidence of a reasonably adequate
warning is only necessary if, as a matter of law, the jury could not have
reasonably concluded that the emergency crossover was not an
unreasonably dangerous hazard. Because we conclude the State provided
sufficient evidence that there was no unreasonably dangerous hazard
requiring a warning, we need not rely on evidence regarding the yellow
line.

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that the State was immune from liability under § 12-820.03(A). The superior
court did not abuse its discretion in denying Plaintiffs’ motion for a new
trial.

CONCLUSION

¶27 We affirm the superior court’s judgment.

AMY M. WOOD • Clerk of the Court
FILED: AA

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