Arizona Court of Appeals Division Two finds the City of Tucson immune from wrongful death action involving a pedestrian struck in a crosswalk.

A pedestrian was struck by a car and killed while using a crosswalk in the City of Tucson. Her surviving son’s guardians filed a wrongful death action alleging the City negligently created an unreasonably dangerous crosswalk. The City argued it was immune under A.R.S. § 12-820.03, which shields public entities from claims arising out of “a plan or design for construction or maintenance of or improvement to transportation facilities.”

Both parties moved unsuccessfully for summary judgment on the City’s immunity. The trial court ultimately bifurcated the case into two trials—the first would determine the City’s immunity and the second, if necessary, would address liability and damages. The jury in the first trial found the City was immune, obviating the need for the second trial. The lower court denied the guardians’ motion for a new trial on the City’s immunity.

The guardians appealed the trial court’s denials of their motion for summary judgment and motion for a new trial, and asserted numerous discovery and evidentiary errors. The Court of Appeals affirmed the trial court rulings.   

First, the court found that a denial of summary judgment cannot be appealed where it involves factual disputes rather than purely legal issues.  In this case the denial of the guardians’ summary judgment motion was unappealable because determination of the City’s immunity involved the parties’ factual dispute over the appropriate engineering and design standards for the crosswalk at issue. And, because the guardians’ motion for a new trial was based on the denial of summary judgment, and because the guardians did not cite sufficient supportive legal authority to preserve their argument, the court likewise affirmed the trial court’s denial of that motion.

The court next addressed the guardians’ contention that bifurcation of the trial violated the immunity statute, § 12-820.03(B), and was improper under Rule 42 of the Arizona Rules of Civil Procedure. The court found neither argument persuasive.  The statute requires only that the affirmative defense of immunity be tried separately from damages; because it is silent on how liability is tried, it did not prohibit the trial court’s bifurcation method here. Rule 42 grants trial courts broad discretion to sever and try issues separately.  Severance here advanced judicial economy by allowing the second trial to be avoided completely. It also avoided jury confusion regarding similar but distinct issues involved in the immunity dispute and the liability dispute.

The court found that the remainder of the guardians’ grounds for appeal either failed to establish an abuse of discretion, lacked sufficient support in, or adequate reference to, the record or legal authority, failed to identify a specific ruling being challenged, were waived due to a failure to establish they were raised below, or some combination thereof.

Judge Eppich authored the opinion of the court, in which Judges Vásquez and Gard joined.

Posted by: Payslie M. Bowman