JSH Reporter JSH Reporter - Fall 2017 - Page 29

FEATURED ARTICLE: ROAD DESIGN 029 In particular, bifurcation is a way to reduce the often unavoidable human fallacy of juror hindsight bias. It is believed that hindsight bias may play a critical role in civil trials, in which the Defendant is disadvantaged because jurors know the tragic outcome of the Defendant’s alleged behavior and may be more likely to think the Defendant should have known the risks associated with the alleged behavior. One can imagine the sympathy for a family due to the tragic loss of a loved one or the catastrophic injury suffered by the Plaintiff in a motor vehicle accident. Certainly, the determination of whether the public entity can be held liable should be decided without the concern the the jury will be swayed by compassion for the affected Plaintiff. Not only does the amendment minimize the danger that the jury will overlook a valid affirmative defense simply due to sympathy for a seriously injured Plaintiff, but bifurcating the trial can reduce costs and increase efficiency—two things Arizona taxpayers should certainly appreciate. Specifically, a public entity may avoid the costs and fees incurred with a prolonged trial on damages by bifurcating. The Arizona Legislature has given governmental defense attorneys a powerful tool to utilize in roadway design cases in an attempt to reduce the risk of juror hindsight bias. The practitioner defending a roadway design case should assert the affirmative defense of A.R.S. § 12- 820.03 early, tailor discovery accordingly, and file an early motion for summary judgment on the affirmative defense. If the Court finds a question of fact exists as to whether the public entity has established the criteria set forth in A.R.S. § 12-820.03, then counsel should file a motion to bifurcate liability from damages, relying upon the recent amendment. ABOUT THE AUTHOR JOHN DICARO John focuses his practice in the areas of governmental liability, personal injury, dram shop/social liability defense, civil rights and insurance defense. His clients include municipalities, public entities, insurance carriers and private clients. In addition, John serves as a co-chair and faculty member of the Arizona College of Trial Advocacy. 602.263.1777 | jdicaro@jshfirm.com ABOUT THE AUTHOR MICHELE MOLINARIO Michele leads the firm’s Governmental Liability and Employment Trial Group. She concentrates her civil litiga- tion practice on governmental entity defense with an emphasis on civil rights matters. Michele is experienced in defending public entities, municipalities and private prisons in § 1983 claims that include police-related non-lethal and lethal force incidents, SWAT raid/breaching tactics, failure to protect incidents, failure to render medical care, and various search and seizure incidents. 602.263.1746 | mmolinario@jshfirm.com ABOUT THE AUTHOR AMY SALAMON Amy worked as a law clerk (legal intern) at the firm during the summer between her second and third year of law school. She is expected to graduate from Arizona State University’s Sandra Day O’Connor College of Law in 2018.