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Diana Glazer v. State of Arizona , 237 Ariz. 160 ( 2015 )

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                               IN THE
SUPREME COURT OF THE STATE OF ARIZONA
DIANA GLAZER, THE SURVIVING SPOUSE OF MICHAEL GLAZER, DECEASED,
ON HER OWN BEHALF AND AS STATUTORY TRUSTEE FOR LINDSAY GLAZER
AND DAVID GLAZER, SURVIVING CHILDREN OF MICHAEL GLAZER; DIANA
GLAZER, AS SURVIVING PARENT OF SYDNEY GLAZER, DECEASED,
Plaintiff/Appellee,
v.
STATE OF ARIZONA, A GOVERNMENT ENTITY,
Defendant/Appellant.
No. CV-14-0123-PR
Filed May 8, 2015
Appeal from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
No. CV2009-001261
AFFIRMED
Opinion of the Court of Appeals, Division One

234 Ariz. 305

321 P.3d 470

(2014)
VACATED IN PART
COUNSEL:
John P. Leader, The Leader Law Firm, Tucson; Christopher J. Zachar, The
Zachar Law Firm, P.C., Phoenix; and Timothy J. Aiken (argued), Aiken &
Scoptur, P.C., Milwaukee, WI, Attorneys for Diana Glazer
Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Daniel P. Schaack, Fred Zeder (argued), Assistant Attorneys
General, Phoenix, Attorneys for State of Arizona
Barbara LaWall, Pima County Attorney, Dennis C. Bastron, Deputy County
Attorney, Civil Division, Tucson, Attorneys for Amicus Curiae Pima
County
GLAZER V. STATE
Opinion of the Court
Eileen Dennis GilBride, Jennifer B. Anderson, Jones, Skelton & Hochuli,
P.L.C., Phoenix, Attorneys for Amici Curiae Apache, Cochise, Gila,
Graham, Greenlee, La Paz, Maricopa, Mohave, Navajo, Pinal, Santa Cruz,
Yavapai, and Yuma Counties
Kathleen L. Wieneke and Nicholas D. Acedo, Struck Wieneke & Love,
P.L.C., Chandler, Attorneys for Amicus Curiae League of Arizona Cities
and Towns
Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C.,
Tucson, and David L. Abney, Knapp & Roberts, P.C., Scottsdale, Attorneys
for Amicus Curiae The Arizona Association for Justice/Arizona Trial
Lawyers Association
John C. Lemaster and Naomi Thurston, Ryley Carlock & Applewhite,
Phoenix; W. Raymond Johnson III, Johnson Law Group, PLC, Mesa, and
Lynn Eric Goar, Law Office of Lynn Eric Goar, PC, Tucson, Attorneys for
Amicus Curiae Vicki Laffoon, et al.
JUSTICE TIMMER authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER, JUSTICES BERCH and BRUTINEL joined,
and CHIEF JUSTICE BALES dissented in part and concurred in the result.
JUSTICE TIMMER, opinion of the Court:
¶1             Section 12-820.03, A.R.S., provides public entities a “state of
the art” affirmative defense against claims for injuries arising out of a plan
or design for construction of a roadway. To establish the defense, the public
entity must show that the plan or design, when created, conformed to
generally accepted engineering or design standards and that warnings of
any unreasonably dangerous hazards were given that were adequate to
permit the public to take suitable precautions. We today hold that the
affirmative defense remains available even if material changes to travel
have rendered the roadway substandard. Because the State failed to
establish every element of the defense in this case, however, the trial court
did not err by denying the State’s motions for judgment as a matter of law.
2
GLAZER V. STATE
Opinion of the Court
I.      BACKGROUND 1
¶2             In 2007, Melissa Sumpter was driving in the mid-afternoon
behind a semi-truck on an eastbound, two-lane stretch of Interstate 10 (“I-
10”) southeast of Phoenix. As Sumpter started to pass the truck, it began to
move into her lane, causing her to swerve to the left to avoid a collision. She
lost control of her vehicle, which crossed through the eighty-four foot dirt
median into the westbound lanes, and crashed head-on into Diana Glazer’s
vehicle, killing Glazer’s husband and daughter and seriously injuring
Glazer.
¶3            Glazer sued the State for failing to install a median barrier in
the area of the accident. The State named as non-parties at fault the
unidentified truck driver and Sumpter.
¶4            The State moved for summary judgment based on A.R.S. § 12-
820.03. It argued 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.
Although it presented evidence that the roadway was not unreasonably
dangerous, the State did not address § 12-820.03’s warning requirement.
Opposing the motion, Glazer argued that § 12-820.03 did not apply to her
claim, and she presented opinion evidence that the absence of a median
barrier rendered this stretch of I-10 unreasonably dangerous.
¶5             The trial court ruled that § 12-820.03 did not apply because
Glazer did not allege that I-10 was unsafe when it was designed but, rather,
asserted that the circumstances in 2007 rendered this portion of the
roadway unreasonably unsafe. According to the court, § 12-820.03 “[does
not] grant the State immunity to properly design a highway in 1967 and
then ignore the developments of 40 years in the speed, size, and volume of
traffic that might render the highway no longer reasonably safe.” The court
therefore denied the motion.
¶6            At trial, Glazer’s expert witness opined that the State should
have installed barriers by 2002 due to the number of cross-median accidents
1      We review the evidence in the light most favorable to upholding the
jury’s verdict. See Hutcherson v. City of Phoenix,

192 Ariz. 51

, 53 ¶ 13,

961 P.2d 449

, 451 (1998).
3
GLAZER V. STATE
Opinion of the Court
that likely occurred in the accident area before 2000. He surmised that such
accidents occurred because the roadway was “ultra-hazardous” by 2006
due to the increases in traffic volume, truck traffic, and speed limit since
1967 and because ten cross-median accidents occurred from 2003 to 2007 in
the eight-mile stretch of I-10 surrounding the accident site. The State
countered with evidence that it complied with nationwide standards by
monitoring I-10 in one-mile segments, that no cross-median accidents had
occurred in the segments immediately surrounding the accident site during
the preceding five years, and that the site was not in a high-accident
location.
¶7            At the conclusion of Glazer’s case-in-chief, the court denied
the State’s motion for judgment as a matter of law (“JMOL”), which again
asserted § 12-820.03’s affirmative defense. See Ariz. R. Civ. P. 50(a). The
jury found in favor of Glazer, awarded $7.8 million in damages, and
assigned 100 percent of fault to the State and none to Sumpter or the truck
driver. The court denied the State’s post-trial motions, including a renewed
motion for JMOL asserting the § 12-820.03 defense. See

id. 50(b). ¶8

           The court of appeals affirmed. Glazer v. State,

234 Ariz. 305

,
314 ¶ 25,

321 P.3d 470

, 479 (App. 2014). It held that § 12-820.03 was
inapplicable because Glazer’s claim did not arise out of a plan or design
used in 1967, but instead arose from the State’s “fail[ure] to install a median
barrier on I-10 given substantial, material changes within a decade (or less)
before the 2007 crash.”

Id. at 314

¶ 25

n.5, 321 P.3d at 479

n.5.
¶9             We granted review because the meaning of § 12-820.03 is a
matter of first impression for this Court and of statewide importance. We
have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
II. DISCUSSION
A.
¶10              This Court abolished the doctrine of sovereign immunity for
tort liability in 1963, concluding that the government and its employees
should generally be responsible for injuries they negligently cause. Stone v.
Ariz. Highway Comm’n,

93 Ariz. 384

, 392,

381 P.2d 107

, 112 (1963) (“[T]he
rule is liability and immunity is the exception.”). But determining when the
4
GLAZER V. STATE
Opinion of the Court
government should be immunized from liability proved problematic in
ensuing cases, and we invited the legislature to address the issue. See Ryan
v. State,

134 Ariz. 308

, 310,

656 P.2d 597

, 599 (1982), superseded by statute as
stated in Clouse ex rel. Clouse v. State,

199 Ariz. 196

, 203 ¶ 27,

16 P.3d 757

, 764
(2001).
¶11           The legislature responded in 1984 by enacting the Actions
Against Public Entities or Public Employees Act (the “Act”), which specifies
circumstances in which governmental entities and public employees are
immune from tort liability. 1984 Ariz. Sess. Laws, ch. 285 (2d Reg. Sess.)
(codified at A.R.S. §§ 12-820 to -826). The Act leaves intact the common-law
rule that the government is liable for its tortious conduct unless immunity
applies. Pritchard v. State,

163 Ariz. 427

, 431,

788 P.2d 1178

, 1182 (1990); see
also 1984 Ariz. Sess. Laws, ch. 285, § 1(A) (declaring as public policy that
“public entities are liable for acts and omissions of employees in accordance
with the statutes and common law of this state”).
¶12            We review the interpretation of a statute de novo. Hoffman v.
Chandler,

231 Ariz. 362

, 364 ¶ 8,

295 P.3d 939

, 941 (2013). Our primary
objective in interpreting § 12-820.03 is to effectuate the legislature’s intent.
J.D. v. Hegyi,

236 Ariz. 39

, 40 ¶ 6,

335 P.3d 1118

, 1119 (2014). If the statute is
subject to only one reasonable interpretation, we apply it without further
analysis. See Backus v. State,

220 Ariz. 101

, 104 ¶ 11,

203 P.3d 499

, 502 (2009).
If it is ambiguous, however, we consider other factors, including “the
context of the statute, the language used, the subject matter, its historical
background, its effects and consequences, and its spirit and purpose.”
Wyatt v. Wehmueller,

167 Ariz. 281

, 284,

806 P.2d 870

, 873 (1991). Because
§ 12-820.03 bars recovery against public entities if the defense is proven, we
construe it narrowly. Cf. Doe ex rel. Doe v. State,

200 Ariz. 174

, 176 ¶ 4,

24 P.3d 1269

, 1271 (2001).
B.
1.
¶13            The state owes a common-law duty to travelers to keep its
roadways reasonably safe for travel. See Dunham v. Pima County,

161 Ariz. 304

, 306,

778 P.2d 1200

, 1202 (1989); Bach v. State,

152 Ariz. 145

, 147,

730 P.2d 854

, 856 (App. 1986). But, despite that overarching obligation, the state may
5
GLAZER V. STATE
Opinion of the Court
be relieved from liability for roadway-related injuries under the
circumstances set forth in § 12-820.03, titled “Affirmative defense”:
Neither a public entity nor a public employee is liable
for an injury arising out of a plan or design for construction
or maintenance[ 2] of or improvement to highways, roads,
streets, bridges, or rights-of-way 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, provided, however, that
reasonably adequate warning shall be given as to any
unreasonably dangerous hazards which would allow the
public to take suitable precautions.
Thus, to successfully invoke this defense, the state must prove that (1) the
injury alleged 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 or design 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. See
Hegel v. O’Malley Ins. Co.,

122 Ariz. 52

, 56,

593 P.2d 275

, 279 (1979) (noting
that the proponent of an affirmative defense has the burden to prove it).
2.
¶14           The key issue here is whether injuries from the Glazers’
collision were ones “arising out of a plan or design” for the construction of
I-10. We give these terms their usual and commonly understood meanings
unless the legislature intended a different meaning. See Bilke v. State,

206 Ariz. 462

, 464–65 ¶ 11,

80 P.3d 269

, 271–72 (2003).
¶15         A “plan” can be a “method of acting, doing, [or] proceeding”
or “a design or scheme of arrangement,” Random House Webster’s
Unabridged Dictionary 1479–80 (2d ed. 2001), while a “design” is a
2       “Maintenance” means “the establishment or continuation in
existence of” roadways and roadway structures “and does not mean or
refer to ordinary repair or upkeep.” A.R.S. § 12-820(4).
6
GLAZER V. STATE
Opinion of the Court
“combination of details or features” or a plan for “form and structure,”

id. at 539.

Injuries “arise” out of a plan or design if they “result or proceed”
from either. See

id. at 113.

¶16            Glazer asserted that the injuries she and her family suffered
resulted from the lack of a median barrier, which made the stretch of I-10
near the accident site dangerous in light of the volume, speed, and type of
traffic along I-10 in 2007. A median barrier is a roadway safety feature, Tex.
Dep’t of Transp. v. Ramirez,

74 S.W.3d 864

, 867 (Tex. 2002), and the State’s
omission of this feature was part of its 1967 design for construction of I-10,
see Wyckoff v. State,

108 Cal. Rptr. 2d 198

, 204 (Ct. App. 2001) (“[W]hat
caused the accident—the absence of a median barrier—was part of the
design.”). No evidence suggests that the construction of the relevant stretch
of I-10, including the median, changed since 1967. Just as no barrier existed
to prevent cross-median accidents in 2007, no barrier prevented them in
1967. In other words, the highway had the same design in 2007 that it had
when built. For these reasons, and based on the wording of § 12-820.03 and
the crux of Glazer’s negligence claim, we conclude that the Glazers’ injuries
were ones “arising out of” the State’s original construction design for that
portion of I-10.
¶17            The dissent contends that “[b]ecause the statute recognizes
that injuries may arise from plans for maintenance or improvement as
distinct from plans for construction, it is inappropriate to conclude that an
injury is one ‘arising out of’ a plan of construction merely because the injury
relates to existing highway conditions.” See infra. ¶ 40. But the record does
not contain evidence that any plan or design for the maintenance of or
improvement to the relevant area of I-10 supplanted the original
construction design. Indeed, neither the trial court nor the court of appeals
addressed “maintenance” or “improvement.” On this record, the lack of a
median barrier was an inherent feature of the original construction design
that persisted to the time of the accident, making our conclusion entirely
appropriate.
¶18            The court of appeals reached a different conclusion, reasoning
that “Glazer’s claim, filings and evidence at trial did not involve a claimed
‘injury arising out of a plan or design’ for the construction of I-10 in 1967,
meaning A.R.S. § 12-820.03 did not apply.”

Glazer, 234 Ariz. at 312

¶

19, 321 P.3d at 477

. Instead, the court concluded that the Glazers’ injuries arose
from the State’s failure to install a median barrier as required for safe travel
7
GLAZER V. STATE
Opinion of the Court
due to material changes in the use of I-10 that occurred decades after its
1967 design.

Id. at ¶¶

17–19. Relatedly, our dissenting colleague asserts
that the Glazers’ injuries did not arise out of the original construction
design because the omission of a median barrier did not make I-10 unsafe
under the conditions as contemplated in 1967. See infra ¶ 46. He would not
apply the affirmative defense to injuries arising from construction plans
when “the highway is being used in substantially different conditions than
for which it was designed.” Infra ¶ 41. In essence, both the court of appeals
and the dissent conclude that § 12-820.03 does not apply if a public entity
fails to redesign a roadway when material changes make upgrades
necessary to keep the roadway reasonably safe for travel, and a claimant
suffers injuries as a result. We disagree.
¶19           Nothing in § 12-820.03 precludes its application if injuries
occur after material changes to travel over a roadway make the most-recent
plan or design substandard. Requiring the public entity to show that its
plan or design conformed to accepted standards in effect “at the time of the
preparation of the plan or design,” suggests that the defense applies to
injuries occurring after standards and circumstances have changed. A.R.S.
§ 12-820.03. Also, requiring warnings for “unreasonably dangerous
hazards” contemplates that roadways could become hazardous despite
having been designed and built according to plans that originally
conformed to safety standards.

Id. ¶20 The

court of appeals’ and the dissent’s interpretation vitiates
much of § 12-820.03’s protection as a state-of-the-art defense. Additionally,
they fail to demarcate when or what “material changes” or “substantially
different conditions” to travel render § 12-820.03 inapplicable, making
application of the defense uncertain. Arizona has thousands of miles of
state, county, and municipal roadways, and material changes to travel
conditions like speed limits and traffic congestion occur over time that may
make roadway designs outdated. But public entities have limited resources
to bring all roadways into compliance with current design standards and
must prioritize needs. Cf. Ariz. Dep’t of Transp., Roadway Design Guidelines
§ 3.1 (2012) (“Design standards have evolved over a number of years. It is
not economically feasible to bring previously constructed highways into
conformity with current standards.”). If § 12-820.03 does not apply when
material changes have occurred to travel over roadways, public entities will
be forced to either expend larger shares of their budgets to continuously
update roadways and roadway features or risk sweeping liability exposure.
8
GLAZER V. STATE
Opinion of the Court
This is precisely the scenario that the legislature intended to protect against
by enacting § 12-820.03.
¶21            When it passed the Act, the legislature acknowledged that
“unfair and inequitable results” occur when strictly applying sovereign
immunity, but recognized that, unlike private entrepreneurs, “the area
within which government has the power to act for the public good is almost
without limit and therefore government should not have the duty to do
everything that might be done.” 1984 Ariz. Sess. Laws, ch. 285, § 1(A); cf.
Report of the Governor’s Commission on Governmental Tort Liability 8 (1983)
[hereinafter Commission Report] (stating that the Act balances the inequity
of government immunity with “the need for governmental immunity in
limited situations because of the unique role of government and because of
competing policy and fiscal considerations”). 3 If § 12-820.03’s protection
vanishes when changes in travel occur over a roadway or roadway feature,
public entities would be tasked with doing “everything that might be done”
for transportation safety by continuously bringing roadways up to current
standards. Cf. Daniels v. Dep’t of Transp.,

474 S.E.2d 26

, 28 (Ga. Ct. App.
1996) (holding that the Georgia Tort Claims Act exempts a public entity
from liability for failing to upgrade a highway to meet current design
standards because permitting liability “would effectively eliminate the
[Act’s] protection”).
¶22           Glazer argues that her family’s injuries arose not from any
plan or design but from the State’s failure to monitor I-10 for cross-median
accidents in compliance with its operational standards. Had the State done
so, Glazer contends, it would have identified the collision area as having an
unacceptably high number of such accidents and responded by installing a
median barrier before the collision in this case occurred.
¶23            But the State’s failure to monitor I-10’s cross-median
accidents, in and of itself, did not injure the Glazers. They suffered injuries
from the State’s failure to install a median barrier at the collision site.
Although Glazer frames her claim as one arising from the State’s failure to
adhere to operational standards, the core of her claim is that the State failed
3       The Act is an amended version of legislation proposed in the
Commission Report. James L. Conlogue, Note, A Separation of Powers Analysis
of the Absolute Immunity of Public Entities,

28 Ariz. L

. Rev. 49, 50–51 (1986)
(describing legislative history of the Act).
9
GLAZER V. STATE
Opinion of the Court
to redesign the roadway by adding a median barrier in the face of changed
standards and circumstances. Cf. Greenwood v. State,

217 Ariz. 438

, 444–45
¶ 22,

175 P.3d 687

, 693–94 (App. 2008) (“[I]f qualified immunity were
inapplicable simply because the form of Plaintiffs’ allegations did not
mimic the statute, it would encourage plaintiffs to purposely plead their
claims to avoid the application of the statute.”).
¶24              Both the trial court and the court of appeals expressed a
concern, which the dissent echoes, that the interpretation of § 12-820.03 we
adopt would permit public entities to ignore unsafe road conditions. See

Glazer, 234 Ariz. at 314

¶

24, 321 P.3d at 479

(“[T]he State could ignore
significant changes in traffic volume and speed, vehicle size, accident
frequency and similar developments without regard to safety or liability.”);
see also infra ¶ 37. But to successfully assert the § 12-820.03 defense, the State
must provide “reasonably adequate warning” of “any unreasonably
dangerous hazards” so as to allow travelers to take suitable precautions.
A.R.S. § 12-820.03; cf. Commission Report at 14 (explaining that the
affirmative defense “does not absolve the responsible governmental entity
from a duty to exercise reasonable care in warning about hazards, such as
a narrow bridge or a dangerous curve, even [though] at the time the
highway was designed and built the ‘state of the art’ was such that the
hazard could not have been eliminated”).
¶25            The dissent incorrectly asserts that “[our] view effectively
replaces the State’s duty to keep its highways reasonably safe with a duty
to warn the public that highways have become unreasonably dangerous.”
See infra ¶ 45. But it is the statute, not our “view,” that qualifiedly displaces
common law, and § 12-820.03’s affirmative defense applies only if the state
can make the required showing. Moreover, the defense does not relieve the
state from performing ordinary repair and upkeep on highways as needed
to keep the traveling public safe. See A.R.S. § 12-820(4). Thus, in addition
to providing warnings for unreasonably dangerous hazards, the state must
protect the public, in a non-negligent manner, against hazards that fall
outside the ambit of § 12-820.03 and against hazards that could be remedied
through ordinary upkeep and repair.
¶26          Other factors encourage public entities to address material
changes in roadway travel that affect safety. As the State and the
governmental Amici point out, public entities are motivated by constituent
welfare and federal funding requirements to keep the roadways safe for
10
GLAZER V. STATE
Opinion of the Court
travel. See 23 U.S.C. § 148(c)(1) (requiring a state to implement a highway
safety improvement program to receive federal funding for highways).
According to the state traffic engineer, Arizona monitors all roadways and
identifies high-accident locations to address safety issues, using a system
required by the federal government as a safety-funding condition.
¶27            In sum, § 12-820.03 can apply when material changes to
roadway travel render a plan or design for construction, maintenance, or
improvement obsolete and the plaintiff’s injuries arise from the public
entity’s failure to upgrade the roadway in response to those changes. We
emphasize that § 12-820.03 does not negate a public entity’s common-law
duty to keep roadways reasonably safe for travel. It simply provides a
defense to liability if the public entity proves the statutory elements.
C.
¶28           The State did not move for a new trial based on § 12-820.03,
and it does not ask this Court to remand the case for a new trial. Cf. In re
Estate of Hanscome,

227 Ariz. 158

, 164 ¶ 20,

254 P.3d 397

, 403 (App. 2011)
(“The court may not . . . grant a new trial to a non-moving party who did
not timely request one.”). Instead, the State argues that it proved § 12-
820.03’s affirmative defense and the trial court therefore erred by denying
its motions for JMOL. 4 The State was entitled to JMOL if, given the
evidence concerning § 12-820.03’s requirements, and viewing the evidence
in the light most favorable to Glazer as the non-moving party, reasonable
people could not find in favor of Glazer. Cf. Orme School v. Reeves,

166 Ariz. 301

, 309,

802 P.2d 1000

, 1008 (1990).
¶29           In prior cases, we have reviewed the denial of motions for
JMOL for an abuse of discretion. See, e.g., Gonzales v. City of Phoenix,

203 Ariz. 152

, 153 ¶ 2,

52 P.3d 184

, 185 (2002). The standards for granting or
denying a motion for JMOL and a motion for summary judgment are the
4      The State also challenges the trial court’s denial of its pretrial motion
for summary judgment. The denial of a motion for summary judgment
generally is not an appealable order. See State v. Superior Court,

140 Ariz. 365

, 366,

681 P.2d 1384

, 1385 (1984). Regardless, the record does not reflect,
and the State does not assert, that the trial court denied the motion for a
different reason than it denied the later motions for JMOL, and the State
does not assert any arguments unique to the summary judgment ruling.
11
GLAZER V. STATE
Opinion of the Court
same. Orme

School, 166 Ariz. at 309

, 802 P.2d at 1008 (“Although the two
motions occur at different times during the trial process, they share the
underlying theory that there is no issue of fact and that the movant is
entitled to judgment as a matter of law.”). An appellate court reviews de
novo whether summary judgment is appropriate. See

id. Because the

same
standard applies for deciding a motion for summary judgment or for JMOL,
we now hold that an appellate court should also review de novo the grant
or denial of a motion for JMOL.
¶30           As previously explained, the Glazers’ injuries arose from the
State’s design for the construction of I-10. And Glazer concedes that the
design was prepared in conformance with accepted engineering or design
standards then in effect. Thus, the State established § 12-820.03’s first
requirement.
¶31           But the State did not establish its compliance with § 12-
820.03’s warning proviso. The State could satisfy that requirement by
showing either that the open median was not an “unreasonably dangerous
hazard,” thereby obviating the need for warnings, or, if an “unreasonably
dangerous hazard” existed, that the State provided adequate warnings to
allow travelers to take suitable precautions.
¶32           The State did not prove either alternative as a matter of law.
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. Specifically, Glazer elicited expert
testimony that the lack of a barrier, coupled with changes to travel since I-
10 was originally constructed, made the median in the collision area
“dangerous” and “ultra-hazardous,” as demonstrated by an unusually high
number of cross-median accidents in the area. In light of this evidence, a
reasonable person could have found that the open median in the accident
area was an “unreasonably dangerous hazard,” cf.

Bach, 152 Ariz. at 146

,
730 P.2d at 857 (App. 1986) (holding that an off-road box culvert was an
unreasonably dangerous condition), and the State therefore needed to
demonstrate that it had given adequate warnings to establish § 12-820.03’s
defense, see Edwards v. Bd. of Supervisors,

224 Ariz. 221

, 223 ¶¶ 15–17,

229 P.3d 233

, 235 (App. 2010) (finding that county established § 12-820.03’s
“warning requirement” with uncontroverted evidence of a warning letter).
But the record does not show that the State gave any warnings, and the
12
GLAZER V. STATE
Opinion of the Court
State does not contend that it would have offered such evidence if the trial
court had correctly interpreted § 12-820.03.
¶33           The State nevertheless argues that Glazer waived § 12-
820.03’s warning requirement by failing to raise it before the jury returned
its verdict. But as the proponent of the affirmative defense, the State—not
Glazer—was required to prove its compliance with all aspects of § 12-
820.03, including the warning requirement, see

Hegel, 122 Ariz. at 56

, 593
P.2d at 279, and it failed to do so.
¶34           The State also contends that it was not required to comply
with the warning requirement because “no warning could have allowed the
public to take suitable precautions.” The State admits, however, it failed to
present any evidence to permit the jury to make that determination.
Therefore, we need not decide whether § 12-820.03 remains an available
defense if an effective warning is not possible.
¶35            Because a reasonable person could find that the unobstructed
median was an unreasonably dangerous hazard and no evidence showed
that the public had been adequately warned of the condition, the State did
not establish, as a matter of law, the affirmative defense prescribed by § 12-
820.03. Consequently, although the trial court misinterpreted § 12-820.03,
it did not err by denying the State’s motions for JMOL.
II.    CONCLUSION
¶36            We hold that the affirmative defense in A.R.S. § 12-820.03 is
available when material changes to travel over roadways or roadway
features have rendered the original plans or designs substandard and no
other plans have succeeded them. The court of appeals held otherwise, and
we therefore vacate paragraphs nine through twenty-five of its opinion.
But, although the State proved some elements of the affirmative defense, it
did not show, as a matter of law, either that the open median in the collision
area was not an “unreasonably dangerous hazard” or, if it was, that the
State warned the public of this hazard. Consequently, the trial court did
not err by denying the State’s motions for JMOL. We therefore affirm the
trial court judgment.
13
GLAZER V. STATE
CHIEF JUSTICE BALES, Dissenting in Part and Concurring in the Result
Bales, C.J., dissenting in part and concurring in the result.
¶37            The Glazers have never argued that the 1967 construction
plan was deficient for not including median barriers for this particular
stretch of the I-10 highway. Instead, they contended, and the jury agreed,
that the State breached its long-established duty to keep its highways
reasonably safe by not installing barriers, or taking other safety measures,
in light of dramatic changes in the highway’s usage in the last forty years.
Throughout this litigation, the State has asserted that A.R.S. § 12-820.03
allows it to ignore these changes and escape liability for the highway’s
dangerous condition merely because median barriers were not required in
1967. This interpretation would effectively eliminate the State’s duty to
keep its highways reasonably safe for travel.
¶38            I respectfully disagree with the majority’s conclusion, ¶¶ 13-
27, that § 12-820.03 applies to the Glazers’ negligence claim. But I agree
that, if the statute does apply, the State was not entitled to prevail as a
matter of law. Given the jury’s determination that the conditions were
unreasonably dangerous in 2007, the State would only have been entitled
to the affirmative defense if it had shown that it had provided adequate
warnings. See ¶ 31. The State never even attempted to make such a
showing.
¶39            Our interpretation of § 12-820.03 should be guided by several
background principles. First, we have recognized for more than ninety
years that the State has a duty to keep its highways reasonably safe for
travel. See, e.g., Dunham v. Pima County,