The JSH Reporter JSH Reporter - Fall 2017 | Page 29
FEATURED ARTICLE: ROAD DESIGN
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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 | [email protected]
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 | [email protected]
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.