The Arizona Supreme Court holds that A.R.S. § 12-820.03 provides an affirmative defense to the State for injuries arising out of roadway designs that meet current standards when first designed even when material changes to travel over roadways have rendered the original roadway designs substandard.

In 2007, Melissa Sumpter was driving on an eastbound, two-lane stretch of Interstate 10 (“I-10”).  As, Sumpter attempted to pass a large semi-truck, the semi moved into her lane, causing her to swerve left to avoid the collision.  Sumpter lost control of her car, crossed the 84-foot dirt median into the westbound lanes, and crashed head-on into Diana Glazer’s vehicle.  Glazer was seriously injured, and her husband and daughter were killed.  Glazer sued the State for failing to install a median barrier in the area of the accident. 

The State moved for summary judgment based on A.R.S. § 12-820.03, arguing that because a median barrier was not required when I-10 was designed and constructed in 1967 and the Glazers’ injuries arose from the absence of a barrier, § 12-820.03 relieved the State from liability.  The State presented some evidence that the roadway was not unreasonably dangerous, but failed to address § 12-820.03’s warning requirement.  The trial court denied the motion, explaining that Glazer did not allege that I-10 was unsafe when it was designed, but, rather, asserted that the circumstances in 2007 presented a substantial and material change to the roadway that rendered it unreasonably unsafe.  A jury found the State 100% at fault and awarded Glazer $7.8 million in damages. On appeal, the court of appeals affirmed the trial court’s ruling. 

Section 12-820.03 provides a defense to State, if the State proves that (1) the injury arose out of a plan or design for the construction, maintenance, or improvement of a roadway or roadway feature, (2) the plan or design conformed to engineering or design standards generally accepted when the plan was prepared, and (3) if any unreasonably dangerous hazards exist, a reasonably adequate warning was given that would have allowed the public to take suitable precautions.

 The Supreme Court disagreed with both the trial court and the court of appeals, holding that Glazer’s injury arose out of the 1967 design for the I-10.    The Court explained that no evidence suggested that the construction had changed since 1967, and because no barrier existed in either 1967 or 2007, the highway in 2007 had the same design as it had when built.  Thus, Glazer’s injuries were ones “arising out of” the State’s original construction design for that portion of the I-10. 

The Court also held that nothing in § 12-820.03 precludes it application if injuries occur after material changes to travel over a roadway make the most-recent plan substandard.  In fact, requiring the State to show that its plan conformed to accepted standards in effect “at the time of the preparation of the design” suggests that the defense applies to injuries occurring after standards and circumstances have changed.  The Court explained that it must interpret the plain language of the statute, even if unintended and harsh consequences result from its interpretation. 

But even though the Court overturned the trial court and the court of appeals as to whether the injuries “arose out of a plan,” it upheld the jury’s award against the State because the State failed to either show that (1) the median was not unreasonably dangerous or (2) that the State had provided adequate warnings of dangerous conditions.  Although the State did present some evidence as to whether the road was unreasonably dangerous, the Court held that a reasonable person could agree with Glazer’s evidence to the contrary.  Because no warnings were provided, the Court held the trial court properly denied the State the benefit of the affirmative defense.

Justice Timmer authored the opinion; Vice Chief Justice Pelander and Justices Berch and Brutinel concurred.  Chief Justice Bales dissented in part and concurred in the result.