FEATURED ARTICLE : ROAD DESIGN
028
BIFURCATION NO LONGER THE ROAD LESS TRAVELED IN ROAD DESIGN LAWSUITS :
INSIGHT ON S . B . 1025 ’ S RECENT AMENDMENT TO A . R . S . § 12-820.03
AUTHORS : John DiCaro , Michele Molinario & Amy Salamon EMAILS : jdicaro @ jshfirm . com ; mmolinario @ jshfirm . com BIOS : jshfirm . com / JohnMDiCaro ; jshfirm . com / MicheleMolinario
On May 2 , 2017 , Governor Ducey approved S . B . 1025 , which amends the affirmative defense of A . R . S . § 12-820.03 . The purpose of this article is to shed light on the benefits of the bifurcation provision set forth in S . B . 1025 .
Under A . R . S . § 12-820.03 ( A ) of the amended statute , “[ 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 , 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 ; and the public entity or public employee gives to the public a reasonably adequate warning of any unreasonably dangerous hazards which would allow the public to take suitable precautions .” S . B . 1025 also adds a new sub-section to A . R . S . § 12-820.03 . This new sub-section , states : “ If a genuine issue of material fact exists as to whether the public entity or public employee has met the requirements of subsection A of this section , the issue shall be resolved by a trial before and separate and apart from a trial on damages .” A . R . S . § 12-820.03 .
The Benefits of Bifurcation under A . R . S . § 12-820.03 ( B )
To the extent that the Court cannot make a determination of whether the public entity has established the affirmative defense set forth in A . R . S . § 12-820.03 due to disputed material facts , bifurcation is the solution . S . B . 1025 ’ s amendment to A . R . S . § 12- 820.03 ( B ) requires the determination of whether the public entity has met the statutory criteria to establish the affirmative defense to be resolved in a separate trial before a trial on damages . By requiring the affirmative defense to be adjudicated by a separate trial prior to a trial on damages , the amendment to A . R . S . § 12- 820.03 is designed to prevent undue prejudice to the public entity that may result if the jury hears irrelevant and emotional testimony on damages before determining whether the public entity established the affirmative defense .