                                   IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


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. 1 CA-CV 12-0572
                           FILED 4-3-2014


          Appeal from the Superior Court in Maricopa County
                         No. CV2009-001261
              The Honorable John Christian Rea, Judge

                                 AFFIRMED


                                  COUNSEL

Arizona Attorney General’s Office, Phoenix
By Daniel P. Schaack, Fred Zeder
Counsel for Defendant/Appellant

The Leader Law Firm, Tucson
By John P. Leader
Counsel for Plaintiff/Appellee
                             GLAZER v. STATE
                             Opinion of the Court



                                   OPINION

Judge Samuel A. Thumma delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Patricia A. Orozco joined.


T H U M M A, Judge:


¶1             The State of Arizona appeals from a substantial jury verdict
for plaintiffs arising out of a multiple-fatality car crash on Interstate 10.
The State argues the superior court erred in: (1) failing to grant the State
immunity as a matter of law; (2) denying a motion to preclude testimony
from one of plaintiff’s experts and (3) failing to grant a new trial when the
jury allocated all fault to the State. Because the superior court did not err,
the judgment is affirmed.

                 FACTS 1 AND PROCEDURAL HISTORY

¶2            This case arises out of an August 2007 car crash that injured
plaintiff Diana Glazer and killed her husband and their minor daughter.
The Glazers were traveling west on I-10 in a minivan. Melissa Sumpter
was driving east on I-10 in a sport utility vehicle. The crash occurred near
milepost 171, south of Phoenix, on a portion of I-10 built in 1967. The
speed limit was 75 miles per hour and traffic was moving at or above the
speed limit.

¶3             Sumpter moved her SUV into the left lane to pass a semi-
trailer truck. The truck then moved into the passing lane that Sumpter was
occupying, although her exact location relative to the truck was disputed.
The truck’s lane change resulted in Sumpter driving her SUV onto the
shoulder. Although Sumpter avoided contact with the truck, she
apparently tried to drive back onto I-10 and lost control, shooting across
the median and into oncoming traffic. Sumpter’s SUV crashed head-on
into the Glazers’ van, killing Glazer’s husband and young daughter and


1This court “view[s] the evidence in the light most favorable to upholding
the jury’s verdict.” Powers v. Taser Int’l, Inc., 217 Ariz. 398, 399 n.1, ¶ 4, 174
P.3d 777, 778 n.1 (App. 2007).




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                            Opinion of the Court

seriously injuring Glazer. The semi-trailer truck did not stop. In fact,
although the existence of the truck was not disputed, neither the truck nor
its driver was ever identified.

¶4             Glazer sued the State alleging negligence for failing to have
installed “median barriers . . . separating the eastbound and westbound
lanes” of I-10 in the area of the crash. Before, during and after trial, the
State made various filings relevant to this appeal. The State filed a timely
notice pursuant to Arizona Revised Statutes (A.R.S.) section 12-2506(B)
(2014) 2 and Arizona Rule of Civil Procedure 26(b)(5), naming Sumpter and
the driver of the truck as nonparties at fault. The State sought summary
judgment pursuant to A.R.S. § 12-820.03, an affirmative defense applicable
to a claim for “an injury arising out of a plan or design for construction” of
a highway if certain conditions are met. Finding the statute did not apply
to Glazer’s claim, the superior court denied the motion.

¶5             Glazer offered expert testimony from transportation
engineer Dr. Robert Bleyl, who opined that the State should have installed
a median barrier in the area prior to the crash. The State moved to
preclude that testimony and requested an evidentiary hearing, claiming
Dr. Bleyl was not qualified and used improper methodology. The superior
court denied the State’s motion without an evidentiary hearing. During
trial, after an evidentiary hearing outside the presence of the jury, the
court found Dr. Bleyl had shown a proper foundation to discuss prior
accidents as a basis for his opinion. At trial, Dr. Bleyl testified that the
State should have installed a median barrier in the area where the crash
occurred sometime after 2000 but before the crash, and provided bases for
his testimony.

¶6             At the close of Glazer’s case, at the close of the evidence and
then again after the verdict, the State moved for judgment as a matter of
law pursuant to Arizona Rule of Civil Procedure 50, challenging the
superior court’s rulings regarding A.R.S. § 12-820.03 and the admissibility
of Dr. Bleyl’s testimony. The superior court denied those motions.

¶7              The verdict form listed the State, Sumpter and the unknown
truck driver as each having potential fault for the crash. After an eight-day
trial, the jury awarded Glazer $7,800,000 in damages, apportioned all fault


2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.




                                      3
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                             Opinion of the Court

to the State and apportioned no fault to Sumpter or the unknown truck
driver. The State moved for a new trial claiming the verdict was excessive
and not justified by the evidence and again challenging Dr. Bleyl’s
testimony. The superior court denied the motion. This court has
jurisdiction over the State’s timely appeal from the resulting judgment
pursuant to A.R.S. §§ 12-2101(A)(1), (A)(5)(a).

                                DISCUSSION

¶8             The State argues the superior court erred in: (1) failing to
enter judgment in favor of the State as a matter of law pursuant to A.R.S. §
12-820.03; (2) overruling the State’s objections to Dr. Bleyl’s testimony and
(3) failing to grant a new trial after the jury assigned all fault to the State.
This court addresses these arguments in turn.

I.    The Superior Court Did Not Err In Finding A.R.S. § 12-820.03 Did
      Not Apply To Glazer’s Claim.

¶9             The resolution of the State’s claimed immunity implicates
the State’s duty to keep public highways reasonably safe for travel, the
text of A.R.S. § 12-820.03 and the application of those legal concepts to the
claim Glazer asserted and presented to the jury.

       A.     The State’s Duty To Keep Public Highways Reasonably
              Safe For Travel.

¶10            “There is a relationship between the State [of Arizona] and a
traveler using a public highway which imposes a legal obligation upon
the State for that person’s safety. More specifically, the State has a duty to
keep its highways reasonably safe for travel.” Bach v. State, 152 Ariz. 145,
147, 730 P.2d 854, 856 (App. 1986). The Arizona Supreme Court repeatedly
has recognized this common law duty for nearly ninety years. See, e.g.,
Dunham v. Pima County, 161 Ariz. 304, 306, 778 P.2d 1200, 1202 (1989);
Barnes v. City of Tucson, 157 Ariz. 566, 568, 760 P.2d 566, 568 (1988); Coburn
v. City of Tucson, 143 Ariz. 50, 51, 691 P.2d 1078, 1079 (1984); Beach v. City of
Phoenix, 136 Ariz. 601, 602, 667 P.3d 1316, 1317 (1983); Ariz. State Highway
Dep’t v. Bechtold, 105 Ariz. 125, 129, 460 P.2d 179, 183 (1969); City of Phoenix
v. Mayfield, 41 Ariz. 537, 548, 20 P.2d 296, 300 (1933); City of Phoenix. v.
Clem, 28 Ariz. 315, 327, 237 P. 168, 172 (1925).

¶11           Although “not an insurer of those who travel,” the State is
“bound to keep its streets safe for travel” by exercising ordinary care and
caution. Clem, 28 Ariz. at 327, 237 P.2d at 172. This duty includes an
obligation “to erect railings or barriers along the highway at places where


                                       4
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                            Opinion of the Court

they are necessary to make the highway safe and convenient for travelers
in the use of ordinary care.” Mayfield, 41 Ariz. at 548, 20 P.2d at 300
(quoting Johnson v. State, 186 App. Div. 389, 391, 173 N.Y. Supp. 701, 703
(1919)). More specifically, the State has a duty “to place proper barriers,
railings, guards and/or warning signs at dangerous places on a highway
when necessary for travelers’ safety.” Bach, 152 Ariz. at 148, 730 P.2d at
857 (citing authority); see also Mayfield, 41 Ariz. at 546, 20 P.2d at 299
(noting government entity “is liable for personal injuries caused by the
failure to erect guards or railings to prevent accidental driving into or over
. . . excavations, embankments, or canals”). Even where an “improvement
is not defective when made, but later becomes so, the rule is that the
[State] must have actual notice of a defect, or the defect must have existed
a sufficient length of time to imply notice, before [the State] is guilty of
actionable negligence.” Clem, 28 Ariz. at 327, 237 P.2d at 172.

¶12           Given this duty, the superior court in this case properly
instructed the jury that:

                     The [S]tate has [a] duty to keep its
              highways reasonably safe for travel. That duty
              includes the duty to place proper barriers,
              railings, guards and/or warning signs at
              dangerous places on a highway when
              necessary for travelers’ safety.

                     The mere fact that an accident occurred
              does not compel the conclusion that a
              condition was unreasonably dangerous.


       B.    The Text Of A.R.S. § 12-820.03.

¶13           Titled “Affirmative defense,” A.R.S. § 12-820.03 reads:

                      Neither a public entity nor a public
              employee is liable for an injury arising out of a
              plan or design for construction or maintenance
              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



                                      5
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                            Opinion of the Court

              adequate warning shall be given as to any
              unreasonably dangerous hazards which would
              allow the public to take suitable precautions.

This statute was enacted in 1984 in a slightly different form as part of the
Actions Against Public Entities or Public Employees Act (the Act),
codified at A.R.S. §§ 12-820 - 826. The Act followed the Arizona Supreme
Court’s abolition of judicially-created State immunity for tort liability. See
Ryan v. State, 134 Ariz. 308, 310, 656 P.2d 597, 599 (1982) (also encouraging
the Legislature to address the issue), superseded by the Act as stated in Clouse
ex rel. Clouse v. State, 199 Ariz. 196, 16 P.3d 757 (2001) (3-2 decision); Stone
v. Ariz. Highway Comm’n, 93 Ariz. 384, 392-93, 381 P.2d 107, 112-13 (1963),
superseded by the Act as stated in Backus v. State, 220 Ariz. 101, 203 P.3d 499
(2009) (same); see also Goss v. City of Globe, 180 Ariz. 229, 232, 883 P.2d 466,
469 (App. 1994) (describing Act’s history).

¶14           As the Legislature declared when passing the Act,

                      The     [L]egislature   recognizes     the
              inherently unfair and inequitable results which
              occur in the strict application of the traditional
              doctrine of sovereign immunity. On the other
              hand, the [L]egislature recognizes that, while a
              private entrepreneur may readily be held liable
              for negligence within the chosen scope of his
              activity, 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. Consequently, it is hereby declared to
              be the public policy of this state that public
              entities are liable for acts and omissions of
              employees in accordance with the statutes and
              common law of this state. All of the provisions
              of [the Act] should be construed with a view to
              carry out the above legislative purpose.

A.R.S. § 12-820 (historical and statutory notes Laws 1984, Ch. 285, § 1).
Thus, the Act directs broad common law liability for the State while, at the
same time, listing certain exceptions to such liability, including the




                                       6
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                            Opinion of the Court

affirmative defense in A.R.S. § 12-820.03. 3 Accordingly, in Arizona, “the
right to sue the [S]tate is not a statutory grant, as is the case in several
other states; rather, it is a common law rule in Arizona that the
government is liable for its tortious conduct and immunity is the
exception.” Pritchard v. State, 163 Ariz. 427, 431, 788 P.2d 1178, 1182 (1990);
accord Galati v. Lake Havasu City, 186 Ariz. 131, 134, 920 P.2d 11, 14 (App.
1996) (“The Act ‘reaffirmed the now well settled common law notion that
governmental immunity is the exception and liability the rule.’”) (quoting
City of Tucson v. Fahringer, 164 Ariz. 599, 600 n.4, 795 P.2d 819, 820 n.4
(1990)).

       C.     The Applicability Of A.R.S. § 12-820.03 To This Case. 4

¶15           The relevant portion of I-10 was built in 1967 pursuant to a
plan or design in existence at that time. Because Glazer conceded that no
median barrier was required when the road was built in 1967, the State
asserts she “conceded the foundation for A.R.S. § 12-820.03: [that I-10’s]
plan or design was prepared in conformance with generally accepted
engineering or design standards in effect at the pertinent time,” meaning
“the statute’s clear language immunizes the State from her claim.” This
argument, however, does not account for Glazer’s claim as pled and the
evidence she relied upon to support that claim (all of which focused on
substantial, material changes occurring on I-10 within a decade or less
before the crash) and the statutory “injury arising out of a plan or design”
requirement for A.R.S. § 12-820.03 to apply.

¶16           In this case, the State could properly invoke the affirmative
defense set forth in A.R.S. § 12-820.03 if Glazer’s claim was:



3 The Act also contains immunities, see A.R.S. §§ 12-820.01-.02, that the
State does not press on appeal and are not addressed here, see Torrez v.
Knowlton, 205 Ariz. 550, 552 n.1, ¶ 3, 73 P.3d 1285, 1287 n.1 (App. 2003).
Given trial evidence suggesting the State had not considered a median
barrier in the relevant location in the decade or more before the crash,
these immunities may not have been applicable factually. Goss, 180 Ariz.
at 232, 883 P.2d at 469 (“We do not believe [the Act’s protection against
liability] was meant to apply where no actual decision-making has
occurred.”).
4Glazer does not argue that A.R.S. § 12-820.03 is inapplicable because it
was enacted after the relevant portion of I-10 was built. Cf. A.R.S. § 1-244.



                                      7
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                             Opinion of the Court

              1.      for an injury arising out of a plan or
                      design

              2.     for construction of I-10

              3.      if the plan or design was prepared in
                      conformance with generally accepted
                      engineering or design standards in
                      effect at the time of the preparation of
                      the plan or design.

Id.; see also Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 119, ¶ 27, 180 P.3d
977, 984 (App. 2008) (noting that proponent has evidentiary burden to
prove affirmative defense). As the superior court found, however, Glazer
does not claim an injury arising out of a plan or design for construction of
I-10 in 1967. 5

¶17          As set forth in her complaint, Glazer’s claim is that she and
her family were injured by the State’s failure to keep I-10 reasonably safe
when it failed to install a median barrier necessitated by substantial,
material changes occurring on I-10 within a decade (or less) before the
2007 crash. Glazer’s complaint references such recent changes, alleging the
State “knew or should have known that:”

              •       “fatal traffic collisions have been
                      increasing in recent years;”
              •       “traffic counts are ever increasing on
                      Arizona’s highways,”
              •       the number of “collisions has also risen
                      steadily over the last ten (10) years;”



5 The State correctly notes Glazer’s claim “is not a maintenance claim,”
adding a median barrier “is a safety feature,” not “a maintenance item.”
See also A.R.S. § 12-820(3) (“‘Maintenance’ means the establishment or
continuation in existence of facilities, highways, roads, streets, bridges or
rights-of-way by a public entity and does not mean or refer to ordinary
repair or upkeep.”). Similarly, Glazer’s claim is for the failure to install a
median barrier on I-10 given substantial, material changes within a decade
(or less) before the 2007 crash, not for an injury arising out of a plan or
design for an improvement of I-10 in 1967.




                                       8
                            GLAZER v. STATE
                            Opinion of the Court

              •      “the number of vehicles traveling” on
                     the relevant portion of I-10 “has risen
                     and continues to rise;”
              •      “the speed limits are higher now on the
                     interstate highway system than they
                     have been at any time in the State’s
                     history;”
              •      on I-10, “an out-of-control vehicle forced
                     into the median could travel over the
                     median into the opposing lanes of
                     travel;”
              •      “the volume of traffic” on I-10 “where
                     this fatal collision occurred was such
                     that there was a significant risk of cross-
                     over accidents;”
              •      “the installation of a median barrier on
                     [I-]10 would significantly have reduced
                     the risk of and/or prevented a cross-
                     over accident in the area where this fatal
                     collision occurred.”

Nowhere does Glazer’s complaint assert a claim “for an injury arising out
of” the 1967 construction of I-10 or the plan or design used for that
construction. Looking solely at a complaint’s allegations, however, does
not finally resolve the applicability of an affirmative defense.

¶18           During this case, Glazer has consistently characterized her
claim as arising out of changes occurring on I-10 within a decade or less
leading up to the 2007 crash. For example, in opposing the State’s motion
for summary judgment on A.R.S. § 12-820.03, Glazer stated that she did
“not claim [her] injuries arose from a plan of design or construction. [She
does] not challenge the design or construction of the roadway.” Instead,
Glazer “allege[s] that based on conditions arising long after the roadway
was built,” the State breached its duty by failing to install a median
barrier. Glazer’s trial evidence was consistent with the claim alleged in
her complaint and in these pretrial filings.

¶19           Glazer’s expert Dr. Bleyl testified that a median barrier was
not required when I-10 was built in 1967 but that subsequent changes
discussed more fully below meant the State should have considered
installing a median barrier as early as 2000. Stated differently, Glazer’s
claim and Dr. Bleyl’s testimony focus on changes occurring on I-10 within
a decade (or less) before the 2007 crash, long after that portion of I-10 had


                                      9
                             GLAZER v. STATE
                             Opinion of the Court

been planned, designed and built. Thus, the evidence considered by the
jury focused on whether the State breached its duty to keep I-10
reasonably safe when it did not install a median barrier given changes
occurring on I-10 less than a decade before the 2007 crash. Simply put, and
using the statute’s language, 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.

¶20            By arguing that A.R.S. § 12-820.03 “immunizes public
entities from claims for alleged highway defects when the highway’s
design met the standards that applied at the time of [the] design,” the
State effectively seeks to remove the “injury arising out of” limitation
expressly set forth in the statute. However, “[e]ach word, phrase, clause
and sentence [of a statute] must be given meaning so that no part will be
void, inert, redundant, or trivial.” Deer Valley Unified Sch. Dist. No. 97 v.
Houser, 214 Ariz. 293, 296, ¶ 8, 152 P.3d 490, 493 (App. 2007). When
statutory language is clear and unambiguous, a court must “follow the
text as it is written.” Ariz. Farm Bureau Fed’n v. Brewer, 226 Ariz. 16, 21, 243
P.3d 619, 624 (App. 2010) (citation omitted). This court is not free to ignore
the “injury arising out of” statutory language, text that prompted the
superior court to find that Glazer:

               do[es] not contend that the highway was
               unsafe as planned and designed in 1967. [She]
               allege[s] that the circumstances in 2007, the
               time of the accident, rendered the highway
               unreasonably unsafe. There is no appellate
               authority construing [A.R.S. §] 12-820.03 that is
               applicable here. Whatever the statute means,
               the Court does not construe it to 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.

¶21           On appeal, the State argues that Edwards v. Board of
Supervisors, 224 Ariz. 221, 229 P.3d 233 (App. 2010) –- the only appellate
decision to apply A.R.S. § 12-820.03 -- and Daniels v. Department of
Transportation, 474 S.E. 2d 26 (Ga. App. 1996) demonstrate it was entitled
to immunity under A.R.S. § 12-820.03 as a matter of law. Neither case
shows the superior court erred.



                                       10
                            GLAZER v. STATE
                            Opinion of the Court

¶22           Unlike Glazer, the plaintiffs in Edwards alleged flood
damage to their home arising out of the design and construction of a
roadway system (which included a culvert drainage system) twenty years
earlier. 224 Ariz. at 222, ¶ 9, 229 P.3d at 234. Unlike Glazer’s claim,
however, the plaintiffs in Edwards challenged the adequacy of a plan at the
time it was built, which easily falls within the protection of A.R.S. § 12-
820.03; because the undisputed evidence showed the culvert “was built
according to generally accepted engineering and design standards in
effect” when it was built, the court affirmed summary judgment for the
defendant county. 224 Ariz. at 223, ¶ 14, 229 P.3d at 235. Unlike Glazer’s
claim, Edwards did not address a claim arising out of a substantial,
material change in circumstances occurring decades after a highway was
built. And unlike Glazer’s claim, Edwards did not involve a claim that the
State breached its long-recognized common law duty to keep highways
reasonably safe for travel. Having not been asked to address a claim like
Glazer’s, Edwards does not resolve the issue raised here. Cf. City of Bisbee v.
Cochise Cnty., 52 Ariz. 1, 6, 78 P.2d 982, 984 (1938) (“The doctrine of stare
decisis cannot be extended to implications from what was actually
decided in a previous case.”).

¶23           In Daniels, the Georgia Court of Appeals held that the State
of Georgia was exempt from liability for an intersection design claim
under the Georgia Tort Claims Act (GTCA). 474 S.E.2d at 27. In construing
GTCA language similar, but not identical, to A.R.S. § 12-820.03, Daniels
noted the intersection was designed in March 1940, when no design
guidelines existed, adding “the first national design guide was approved”
in October 1940. 474 S.E.2d at 27. Daniels went on to reject plaintiff’s
challenge to the intersection “under current design standards,” alleging
that Georgia “had a duty to upgrade the intersection to meet those
standards.” 474 S.E.2d at 27. There is nothing to suggest that Daniels was
asked to address a claim arising out of a substantial, material change in
circumstances occurring long after the design and construction of the
intersection. Moreover, the statutory construction principles for the GTCA
differ from those governing the Act. Arizona’s Legislature has broadly
“declared” the “public policy” of Arizona “that public entities are liable
for acts and omissions of employees in accordance with the statutes and
common law of this state” and that the Act “should be construed with a
view to carry out the above legislative purpose.” A.R.S. § 12-820 (historical
and statutory notes Laws 1984, Ch. 285, § 1). By contrast, the GTCA states
Georgia’s “tort liability must therefore be limited” and “declared” a
“public policy” that Georgia “shall only be liable in tort actions within the
limitations of” the GTCA and “in accordance with the fair and uniform
principles established in” the GTCA. Ga. St. § 50-21-21(a); see also


                                      11
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Pritchard, 163 Ariz. at 431, 788 P.2d at 1182 (distinguishing Arizona
common law government liability from law in “several other states”
where government liability is “a statutory grant”). Finally, Daniels “is not
binding in any other case” in Georgia, Mock v. Kroger Co., 598 S.E.2d 789,
791 (Ga. App. 2004), but is “physical precedent only since one judge
concurred in the judgment,” Davis v. State, 535 S.E.2d 528, 531 (Ga. App.
2000); see also Daniels, 474 S.E.2d at 28 (McMurray, P.J., concurring in
judgment). Although cited by the Georgia Court of Appeals, Daniels has
never been cited by the Georgia Supreme Court, in Arizona or in any
other jurisdiction. Moreover, there is no indication that Daniels represents
the law in any other jurisdiction, and the State concedes Daniels is not
binding here.

¶24            Under the State’s argument, a road built in 1967 –- or even a
century ago -- if in compliance with generally accepted design standards
when built, would never need to be updated. Under that view, the State
could ignore significant changes in traffic volume and speed, vehicle size,
accident frequency and similar developments without regard to safety or
liability. The State cites no applicable case law supporting this view. Nor
has the State shown how this view could peacefully coexist with the
State’s duty to keep roads reasonably safe for travel and the “common law
rule in Arizona that the government is liable for its tortious conduct and
immunity is the exception.” Pritchard, 163 Ariz. at 431, 788 P.2d at 1182.

¶25           In sum, Glazer does not assert a claim for an injury arising
out of a plan or design for the construction of I-10 in 1967. Nor is Glazer’s
claim an attempt to challenge the plan or design for construction of I-10 in
1967 simply based on the passage of time. See Edwards, 224 Ariz. at 222, ¶
9, 229 P.3d at 234. Instead, Glazer’s claim (with supporting trial evidence
accepted by the jury) is that she and her family were injured by the State’s
failure to keep I-10 reasonably safe for travel when it failed to install a
median barrier necessitated by substantial, material changes occurring on
I-10 within a decade (or less) before the 2007 crash. Given the express
terms of A.R.S. § 12-820.03, the State’s common law duty to keep
highways reasonably safe for travel and the nature of Glazer’s claim and
supporting evidence, the superior court did not err in finding that the
affirmative defense contained in A.R.S. § 12-820.03 -- which is limited to
claims for “an injury arising out of a plan or design” -- did not apply. See
Desert Mountain Props. Ltd. v. Liberty Mut. Fire Ins., Co., 225 Ariz. 194, 200,
¶ 12, 236 P.3d 421, 427 (App. 2010) (affirming, on de novo review, denial
of judgment as a matter of law); State v. Mabery Ranch, Co., 216 Ariz. 233,
239, ¶ 23, 165 P.3d 211, 217 (App. 2007) (affirming, on de novo review,
denial of motion for summary judgment).


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II.    The Superior Court Did Not Err In Admitting Dr. Bleyl’s
       Testimony.

¶26            The State argues the superior court erred in failing to hold
an evidentiary hearing and failing to make express findings in denying
the State’s motion in limine to preclude Dr. Bleyl’s testimony. The State
further argues the court abused its discretion in admitting the testimony
because Dr. Bleyl was not qualified and used an unreliable methodology.
This court “review[s] de novo matters involving interpretation of court
rules,” State v. Fitzgerald, 232 Ariz. 208, 210, ¶ 10, 303 P.3d 519, 521 (2013),
and reviews a fact-based “decision to permit or exclude expert testimony
for an abuse of discretion,” McMurty v. Weatherford Hotel, Inc., 231 Ariz.
244, 249, ¶ 10, 293 P.3d 520, 525 (App. 2013). As the proponent of the
evidence, Glazer had the burden to show by a preponderance of the
evidence that Dr. Bleyl’s testimony was admissible. See, e.g., Fed. R. Evid.
702 cmt. to 2000 amend. (citing Bourjaily v. United States, 483 U.S 171, 175
(1987)).

       A.     The Applicable Legal Standard.

¶27         Effective January 1, 2012, Arizona Rule of Evidence 702 was
amended to conform to Federal Rule of Evidence 702 and now provides:

               A witness who is qualified as an expert by
               knowledge, skill, experience, training, or
               education may testify in the form of an opinion
               or otherwise if:

               (a) the expert’s scientific, technical, or other
               specialized knowledge will help the trier of
               fact to understand the evidence or to determine
               a fact in issue;

               (b) the testimony is based on sufficient facts or
               data;

               (c) the testimony is the product of reliable
               principles and methods; and

               (d) the expert has reliably applied the
               principles and methods to the facts of the case.




                                       13
                            GLAZER v. STATE
                            Opinion of the Court

Ariz. R. Evid. 702. As reflected in the Arizona Supreme Court’s comments,
this standard:

              is not intended to supplant traditional jury
              determinations of credibility and the weight to
              be afforded otherwise admissible testimony,
              nor is the amendment intended to permit a
              challenge to the testimony of every expert,
              preclude the testimony of experience-based
              experts, or prohibit testimony based on
              competing methodologies within a field of
              expertise. The trial court’s gatekeeping
              function is not intended to replace the
              adversary      system.      Cross-examination,
              presentation of contrary evidence, and careful
              instruction on the burden of proof are the
              traditional and appropriate means of attacking
              shaky but admissible evidence.

Ariz. R. Evid. 702 cmt. to 2012 amend.; see also State v. Bernstein, 234 Ariz.
89, 94-97, ¶¶ 11-13, 317 P.3d 630, 635-37 (App. 2014) (discussing Ariz. R.
Evid. 702 inquiry and factors). Because they are now textually identical,
“federal court decisions interpreting [Federal Rule of Evidence 702] are
persuasive but not binding” in interpreting Arizona Rule of Evidence 702.
Ariz. State Hosp. v. Klein, 231 Ariz. 467, 473, ¶ 26, 296 P.3d 1003, 1009 (App.
2013). Similarly, the advisory committee notes to the 2000 amendments to
Federal Rule of Evidence 702 provide guidance in interpreting Arizona
Rule of Evidence 702. See Sandretto v. Payson Healthcare Mgmt., Inc., No. 2
CA-CV 2013-0044, 2014 WL 949104, at *4, ¶ 14 (Ariz. App. Mar. 11, 2014).

       B.     The Superior Court Did Not Err In Failing To Hold A
              Pretrial Evidentiary Hearing On The Admissibility Of Dr.
              Bleyl’s Testimony.

¶28           The superior court denied the State’s request for a pretrial
evidentiary hearing to address the admissibility of Dr. Bleyl’s testimony,
finding such a hearing unnecessary. In addressing the admissibility of Dr.
Bleyl’s testimony, the parties provided voluminous written pretrial
submissions. In addition, during trial, the court held an evidentiary
hearing with Dr. Bleyl outside the jury’s presence to determine whether he
could testify “about previous accidents as a basis for his opinion on
median barriers.” Although a court has the discretion to hold a pretrial
evidentiary hearing to address admissibility under Arizona Rule of


                                      14
                            GLAZER v. STATE
                            Opinion of the Court

Evidence 702, such a hearing is not mandatory. See State v. Perez, 233 Ariz.
38, 43, ¶ 19, 308 P.3d 1189, 1194 (App. 2013) (citing Ariz. State Hosp., 231
Ariz. at 474, ¶ 31, 296 P.3d at 1010); see also Sandretto, No. 2 CA-CV 2013-
0044, 2014 WL 949104, at *4, ¶ 17 (“[A] trial court has great discretion
whether to set a pretrial hearing to evaluate proposed expert testimony.”).
Given the parties’ pretrial submissions, as well as the evidentiary hearing
held during trial, the superior court did not abuse its discretion in denying
the State’s request for a pretrial evidentiary hearing. Perez, 233 Ariz. at 43,
¶ 19, 308 P.3d at 1194.

       C.     The Superior Court Was Not Required To Make Findings
              Regarding The Admissibility Of Dr. Bleyl’s Testimony.

¶29            The State argues the superior court erred in failing to make
express admissibility or reliability findings under Arizona Rule of
Evidence 702. The federal circuits are split on whether such findings are
required. Compare United States v. Mitchell, 365 F.3d 215, 233-34 (3d Cir.
2004) (reviewing merits of ruling on admissibility of expert evidence
“adher[ing] to the usual precepts of abuse-of-discretion review,” where
the trial court “elected not to make findings of fact or conclusions of law
(written or oral)”) and Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 791-95
(6th Cir. 2002) (similar) with United States v. Roach, 582 F.3d 1192, 1207
(10th Cir. 2009) (noting trial court “is required to make specific, on-the-
record findings that the testimony is reliable under Daubert”); see also
Mukhtar v. Cal. State Univ., Hayward, 319 F.3d 1073, 1076-77 (9th Cir. 2003)
(Reinhardt, J., dissenting from denial of rehearing en banc) (discussing
various approaches). On the facts of this case, however, this court need
not finally resolve whether such findings are ever required.

¶30           Because the superior court denied the State’s motion in
limine without an evidentiary hearing, this court may properly consider
the same filings relied upon by that court in reaching that conclusion.
Moreover, this court has the further benefit of the transcript of Dr. Bleyl’s
trial testimony –- both to the jury and outside of the presence of the jury --
to determine whether that testimony was properly admitted. Although
this court encourages superior courts to make findings when addressing
pretrial challenges pursuant to Arizona Rule of Evidence 702, and such
findings may be required when evidence is excluded, in this case, the
superior court did not err in failing to make express findings regarding
the admissibility of Dr. Bleyl’s trial testimony.




                                      15
                            GLAZER v. STATE
                            Opinion of the Court

       D.     The Superior Court Did Not Abuse Its Discretion In
              Admitting Dr. Bleyl’s Testimony Under Arizona Rule Of
              Evidence 702.

              1.     Dr. Bleyl Was         Qualified   To   Provide    Expert
                     Testimony.

¶31             The State argues Dr. Bleyl was not qualified to testify on the
standard of care regarding the need to install a median barrier because he
has no highway design experience. A proponent of expert testimony must
show by a preponderance of the evidence that a witness qualifies as an
expert by “knowledge, skill, experience, training, or education” and that
the “expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue.”
Ariz. R. Evid. 702; see also McMurty, 231 Ariz. at 250-52, ¶¶ 15-18, 293 P.3d
at 526-28 (noting expert may be qualified based on experience). “Whether
a witness is qualified as an expert is to be construed liberally, and it would
be an abuse of discretion ‘to exclude testimony simply because . . . the
proposed expert does not have the specialization that the court considers
most appropriate.’” State v. Delgado, 232 Ariz. 182, 186, ¶ 12, 303 P.3d 76,
80 (App. 2013) (citation omitted). “If an expert meets the ‘liberal minimum
qualifications,’ her level of expertise goes to credibility and weight, not
admissibility.” Id. at 186, ¶ 12, 303 P.3d at 80 (quoting Kannankeril v.
Terminix Int’l, Inc., 128 F.3d 802, 809 (3d Cir. 1997)).

¶32            Dr. Bleyl has a Ph.D. in transportation engineering; a
master’s degree in traffic engineering; a bachelor’s degree in civil
engineering and a “certificate of highway transportation,” which he
described as the equivalent of another master’s degree. Dr. Bleyl has been
a transportation engineer for more than 45 years; has worked as a traffic
engineer with the Utah State Department of Highways; served as the
Deputy Utah State Traffic Engineer and as the Assistant Director of the
Bureau of Highway Traffic program at Pennsylvania State University. Dr.
Bleyl spent 16 years teaching highway and traffic engineering at Yale and
Penn State Universities and the University of New Mexico; is a Fellow and
lifetime member of the Institute of Transportation Engineers; is a member
of the National Society of Professional Engineers and is affiliated with the
Transportation Research Board. On this record, the superior court did not
abuse its discretion in finding Dr. Bleyl was qualified under Arizona Rule
of Evidence 702(a) to testify as a standard of care expert. See, e.g.,
McMurtry, 231 Ariz. at 251, ¶ 16, 293 P.3d at 527 (noting “degree of
qualification [for an expert] goes to the weight given the testimony, not its
admissibility”).


                                      16
                            GLAZER v. STATE
                            Opinion of the Court

              2.     Dr. Bleyl’s Testimony Was Not The Product Of An
                     Unreliable Methodology.

                     a.     Dr. Bleyl’s Methodology.

¶33           Dr. Bleyl testified that the State fell below the standard of
care by failing to install a median barrier prior to the Glazer crash in
August 2007. In part, Dr. Bleyl based his opinion on an American
Association of State Highway and Transportation Officials 2002 Roadside
Design Guide (the Design Guide). A chapter of the Design Guide titled
“Median Barriers” discusses general guidelines called warrants that
address when a median barrier may be appropriate, including a warrant
developed by the California Department of Transportation (the CalTrans
warrant). Dr. Bleyl testified that a median barrier may be required as a
consequence of median width and traffic volume or as a consequence of
crossover accidents. As applied, Dr. Bleyl conceded that the Design Guide
did not require or recommend a median barrier “from a volume median
width standpoint,” given the width of the I-10 median at the location of
the crash and that the warrants did not “by themselves require barriers.”
Instead, Dr. Bleyl based his opinion on a history of crossover accidents,
including reliance on the CalTrans warrant, and a level-of-service
analysis.

¶34           Dr. Bleyl focused on recent crossover accidents prior to the
Glazer crash, near the crash site, to show I-10 had become unreasonably
dangerous. He testified “there was a history of crossover accidents on I-10
in the vicinity of” the Glazer crash, citing 10 such accidents from March
2003 to August 2007, making it “[v]ery dangerous.” In reaching that
conclusion, Dr. Bleyl testified that under the CalTrans warrant, the
number of crossover accidents in 2006 on I-10 in the vicinity of the Glazer
crash indicated the State should have considered a median barrier. On
cross-examination, Dr. Bleyl testified that the State “[s]hould have
considered the installation of a barrier” in 2000 or 2001 and it would have
been “within the next couple of years when [the median barrier] would
actually be installed.” When asked how the State, in 2000, could have
anticipated accidents that did not occur until 2003 at the earliest, Dr. Bleyl
noted the State had not preserved accident records predating 2003,
meaning “the best” he could do was to use available data. Dr. Bleyl added
that, in 2000, the State “would have had access to the accidents that
happened in ‘95, ‘6, ‘7, ‘8, ‘9, and [the State] could have done this kind of
analysis,” adding “[i]n all probability” there would have been crossover
accidents before 2003.



                                      17
                            GLAZER v. STATE
                            Opinion of the Court

¶35            Dr. Bleyl’s level-of-service analysis looked at hourly traffic
volume by direction and lane, adjusted to reflect passenger car
equivalents (taking into account the difference between trucks and cars).
Analyzing the State’s traffic volume data, Dr. Bleyl noted that traffic
volume increased far more than anticipated and was “more than double
what [the State] had projected 30 years” earlier. Dr. Bleyl also noted the
speed limit increased from 65 to 75 miles per hour in 1999 or 2000. Using
this analysis, traffic volumes for the relevant portion of I-10 were “getting
to be extremely bad” by 2000, 2001 and 2002 and got even worse after that.
After considering this information and the accident history, Dr. Bleyl
testified that it was “the 2000, 2001 era when [the State] should have done
something,” adding “you really need to have a median barrier installed
here for safety.” Even independent of the crossover accident history
assessment, Dr. Bleyl testified that the combination of factors “that we
have for this location in the era of 2000 would have not only warranted a -
- definitely warranted a barrier, should have been considered, but in all
probability it would have been the safe thing to do.” Dr. Bleyl added that
the information from the State tracing back “over the last 12 years or more
gave no indication whatsoever that [the State] even considered a median
barrier for this general area.”

                     b.     Analysis Of Dr. Bleyl’s Methodology.

¶36            As the proponent of Dr. Bleyl’s testimony, Glazer was
required to show by a preponderance of the evidence that “the testimony
is the product of reliable principles and methods” that have been “reliably
applied . . . to the facts of the case.” Ariz. R. Evid. 702(c), (d). The State
argues that Dr. Bleyl’s testimony was inadmissible because (1) the Design
Guide does not require a barrier for medians as wide as the relevant
portion of I-10; (2) he testified a median barrier should have been
considered as early as 2000, but based his opinion on a history of
crossover accidents starting in 2003 and (3) he used an incorrect definition
of “crossover accident.” The court addresses the State’s arguments in turn.

¶37           The Design Guide includes a chart titled “Suggested
guidelines for median barriers on high-speed roadways,” stating “barrier
not normally considered” for medians more than 50 feet wide. Where the
Glazer crash occurred, the I-10 median is approximately 80 feet wide. Dr.
Bleyl conceded that the Design Guide did not require or recommend a
median barrier “from a volume median width standpoint.” Dr. Bleyl
testified that the relevant portion of I-10 “does not meet” the chart
guidelines, adding “[w]e’re not dealing with that [the chart guidelines] in
this particular case.” The Design Guide expressly states the chart is


                                      18
                            GLAZER v. STATE
                            Opinion of the Court

“suggested for use in the absence of more current (or site-specific) data.”
Given this limitation, Dr. Bleyl based his opinion on the highway-specific
crossover accident history, including the CalTrans warrant, and level-of-
service analysis, not the chart guidelines. In short, Dr. Bleyl conceded the
Design Guide chart did not require a median barrier as relevant here and
made it clear that he based his opinions on other grounds. On this record,
the State has not shown the superior court abused its discretion in
admitting Dr. Bleyl’s testimony that a median barrier was required on
grounds independent of the Design Guide chart.

¶38            The State is correct that Dr. Bleyl testified a median barrier
should have been considered as early as 2000, but analyzed crossover
accidents from 2003 to 2007 within four miles of the Glazer crash. Dr.
Bleyl’s opinion was that a median barrier should have been considered in
2000, and because it was not, the State breached its duty by failing to
install such a barrier by the time of Glazer’s crash in 2007. Accordingly, he
testified it was appropriate to consider crossover accidents from 2003 to
2007. When pressed, Dr. Bleyl testified that the State had failed to retain
information about crossover accidents prior to 2003, apparently given the
passage of time. Accordingly, Dr. Bleyl testified, “the best” he could do
was to use the data “that was available.” The State did not dispute that
pre-2003 crossover accident information had not been retained. Moreover,
Dr. Bleyl testified his level-of-service analysis supported his opinions
independent of the crossover accident history. Specifically, Dr. Bleyl
testified that the combination of factors considered in his level-of-service
analysis indicated a barrier should have been considered and was
warranted “in the era of 2000.” On this record, the superior court did not
abuse its discretion in allowing Dr. Bleyl’s testimony on crossover
accidents that occurred from 2003 to 2007.

¶39           Finally, the State argues that, in applying the CalTrans
warrant, Dr. Bleyl incorrectly considered all crossover accidents, not just
those that resulted in collisions. In pressing this argument, the State does
not cite to any trial evidence setting forth a definition of “crossover
accident” that required a collision. Moreover, and setting aside the
arbitrary nature of whether a crossover incident results in a collision, the
superior court took measures, outside of the presence of the jury, to
ensure the crossover accidents Dr. Bleyl testified about were similar to the
Glazer crash. Dr. Bleyl’s testimony to the jury then made clear that
crossover accidents did not necessarily involve collisions. Although the
State offered evidence implying that a warrant cited in the Design Guide
may have required an actual collision, no such definition was received in
evidence. Without such evidence, the State has not shown that the


                                     19
                            GLAZER v. STATE
                            Opinion of the Court

superior court abused its discretion in allowing Dr. Bleyl’s testimony on
the point.

¶40           In finding the superior court did not abuse its discretion in
admitting Dr. Bleyl’s testimony, it merits mentioning that the State
vigorously challenged his testimony during cross-examination. The State
probed his conclusion that the State should have considered a median
barrier beginning in 2000, a date the State suggested with supporting
documentation may have been the product of an email from Glazer’s
counsel “admonishing him to come up with a concrete date.” The State
questioned Dr. Bleyl’s methodology; his experience; his knowledge of
practices used by various transportation departments and that the
accidents he analyzed occurred after 2000. The State also presented its
own expert to counter Dr. Bleyl’s testimony and to discuss the
appropriateness and effectiveness of a median barrier, causing the
superior court to note that the competing experts used similar general
methodologies. In the end, the jury apparently was persuaded by Dr.
Bleyl’s testimony. On this record, allowing the jury to make that
determination based on competing expert evidence is what Arizona Rule
of Evidence 702 contemplates. See Ariz. R. Evid. 702 cmt. to 2012 amend.
(“Where there is contradictory, but reliable, expert testimony, it is the
province of the jury to determine the weight and credibility of the
testimony.”). For these reasons, the superior court did not abuse its
discretion in admitting Dr. Bleyl’s testimony that the State fell below the
standard of care by failing to install a median barrier prior to the Glazer
crash.

III.   The Superior Court Did Not Abuse Its Discretion In Denying The
       State’s Motion For New Trial Regarding Apportionment Of Fault.

¶41           The jury found the State was entirely at fault for the crash,
attributing no fault to Sumpter or the unknown truck driver. The State’s
motion for new trial argued the verdict could not stand because the jury
failed to allocate any fault to these non-parties. On appeal, the State
argues the superior court erred in denying that motion because “the jury
ignored the undisputed evidence that either Sumpter or the unknown
trucker” was at fault. The State had the evidentiary burden of proving that
any non-party was at fault. Ryan v. S.F. Peaks Trucking Co., 228 Ariz. 42, 48,
¶ 22, 262 P.3d 863, 869 (App. 2011). This court views the evidence in the
light most favorable to sustaining the verdict, and if “any substantial
evidence exists permitting reasonable persons to reach such a result,” the
judgment must be affirmed. Hutcherson v. City of Phx., 192 Ariz. 51, 53, ¶
13, 961 P.2d 449, 451 (1998). The issue on appeal is whether the superior


                                      20
                            GLAZER v. STATE
                            Opinion of the Court

court abused its discretion in finding that the jury properly exercised its
discretion in allocating fault. See McBride v. Kieckhefer Assocs., Inc., 228
Ariz. 262, 266, ¶ 16, 265 P.3d 1061, 1065 (App. 2011) (noting denial of
motion for new trial is reviewed for abuse of discretion). 6

       A.     The Jury Properly Could Have Allocated No Fault To
              Sumpter.

¶42            The trial evidence indicated Sumpter was driving at a
reasonable speed when she drove off the road while attempting to pass
the truck. The evidence indicated Sumpter took “evasive action” to
respond to a “sudden emergency” when the truck began changing lanes.
The evidence was conflicting about whether Sumpter was at fault for not
stopping her car after she drove off the roadway and whether she could
have prevented her car from shooting across the median into oncoming
traffic. Similarly, there was conflicting evidence about whether Sumpter
applied her brakes and what impact braking would have had on her
ability to control her car. This court “must give ‘full credence to the right
of the jury to determine credibility, weigh the evidence, and draw
justifiable conclusions therefrom.’” McBride, 228 Ariz. at 265, ¶ 11, 265
P.3d at 1064 (quoting State v. Clifton, 134 Ariz. 345, 348, 656 P.2d 634, 637
(App. 1982)). Although the jury properly could have made a different
fault allocation, given this conflicting evidence, the jury was not required
to attribute fault to Sumpter. Accordingly, the superior court did not
abuse its discretion in denying the State’s motion for new trial on that
ground.




6  In arguing this fact-intensive issue, the State relies on three
distinguishable cases. Ogden v. J.M. Steel Erecting, Inc., vacated a jury
verdict allocating all fault to an employer, and none to an intoxicated
employee whom the parties stipulated had killed a driver, in light of the
stipulation. 201 Ariz. 32, 34, 36, ¶¶ 3-4, 16, 31 P.3d 806, 808, 810 (App.
2001). Styles v. Ceranski vacated a jury verdict apportioning all fault to an
assisting doctor and none to the actual surgeon, where plaintiff’s counsel
had suggested that the jury hold the assisting doctor liable for the fault of
both. 185 Ariz. 448, 449-52, 916 P.2d 1164, 1165-67 (App. 1996). Finally,
Smith v. Johnson reversed a defense verdict, finding defendant’s
“negligence was a proximate cause of plaintiff’s injuries,” 183 Ariz. 38, 46,
899 P.2d 199, 207 (App. 1995), an issue unrelated to the non-party at fault
allocation here.



                                     21
                            GLAZER v. STATE
                            Opinion of the Court

       B.     The Jury Properly Could Have Allocated No Fault To
              Truck Driver.

¶43           The State argues “overwhelming evidence” showed that the
truck driver was at fault and that the truck’s lane change was a violation
of A.R.S. § 28-729(1), which directs that “[a] person shall drive a vehicle as
nearly as practicable entirely within a single lane and shall not move the
vehicle from that lane until the driver has first ascertained that the
movement can be made with safety.” Accordingly, the State argues the
truck driver’s lane change was negligence per se, meaning the jury was
required to allocate fault to the truck driver.

¶44            The superior court properly instructed the jury on A.R.S. §
28-729(1) and negligence per se. The State addressed fault in closing
arguments and asked the jury to attribute substantial fault to the truck
driver. The remaining question, then, is whether the evidence required the
jury to allocate fault to the truck driver.

¶45           The truck driver, of course, was not a trial witness.
Moreover, neither party called Sumpter as a witness. The only eyewitness
testimony the jury heard was a videotaped deposition of Jaclyn Cline.
Cline was driving about a quarter of a mile behind Sumpter in the right
lane at 75 to 80 miles per hour, keeping pace with traffic. Cline testified
that when Sumpter was in the truck’s blind spot while attempting a pass,
“the truck began to merge over into that lane. [Sumpter] then dipped off
the side of the road and tried to correct. The truck was, at that point, all
the way over into her lane. She then, after trying to correct, knew that she
would have hit the truck, dipped back into the road, at which point, [she]
lost control of the vehicle.” Cline’s testimony was contradicted by other
evidence in some key respects.

¶46          Although Cline testified Sumpter’s SUV flipped numerous
times while crossing the median, other evidence made it clear that
Sumpter’s SUV never flipped. A police officer testified Cline was “100%
wrong” on the point, adding that eyewitnesses “get it wrong” sometimes.
As another example, when expressing animosity toward the truck driver
for not stopping, Cline testified that the truck driver knew what
happened. When asked for the basis of her belief, Cline admitted “that
would have to be my assumption because I wouldn’t be able to know
what he heard or saw or did,” adding her testimony on the point was
“really nothing more than speculation.” Because Cline was the only
eyewitness to the crash who testified at trial, and because the jury was not
required to believe her testimony, the jury may have concluded that the


                                      22
                            GLAZER v. STATE
                            Opinion of the Court

State failed to meet its burden of proving fault by the truck driver.
McBride, 228 Ariz. at 265, ¶ 11, 265 P.3d at 1064.

¶47           Cline agreed that the truck driver was traveling at a
reasonable speed and that the truck’s lane change was “controlled.” She
could not recall if the truck was passing a vehicle. In addition, there was
conflicting evidence about whether Sumpter was in the trucker’s blind
spot. Given the conflicting evidence, the jury could have found that the
truck driver was required to change lanes based on traffic or could have
found Sumpter was in the truck’s blind spot when the truck changed lanes
and, as a result, refrained from assigning fault to the truck driver. See
Ogden, 201 Ariz. at 36, ¶ 15, 31 P.3d at 810.

¶48            The State argues that even assuming Sumpter was in the
truck’s blind spot, the truck driver’s “mistaken belief that he could safely
change lanes cannot excuse his maneuver.” In determining whether the
truck driver complied with A.R.S. § 28-729(1), the jury properly could
have considered surrounding circumstances. See Ray v. Starr, 24 Ariz.
App. 435, 437, 539 P.2d 549, 551 (1975). Given the conflicting evidence
about the truck’s lane change, the jury was not required to find that the
truck driver failed to act as a reasonably careful person would under the
circumstances. Moreover, even assuming negligence per se by the truck
driver, the State also was required to prove causation before the jury could
allocate fault to the truck driver. Dyer v. Best Pharmacal, 118 Ariz. 465, 467,
577 P.2d 1084, 1086 (App. 1978) (“A claim of negligence per se does not
obviate the need . . . to show that the [non-party at fault’s] actions were
the proximate cause of [the] injuries.”). Under these facts, even if the jury
found the truck driver was negligent per se, it could have found the State
was the ultimate cause of the crash by failing to erect a median barrier.

¶49            The jury was properly instructed on the allocation of fault.
The verdict form properly required the jury to allocate fault between the
State, Sumpter and the truck driver, including blanks for “the relative
degrees of fault” for each and adding that “[i]f a party listed below is not
at fault, put a zero (0) on the percentage line for that party.” After hearing
trial evidence, argument from counsel and deliberating, the jury put a
zero on the percentage lines for Sumpter and the truck driver. This court
“‘presume[s] that jurors follow instructions,’” meaning the jury
considered the possible fault of the listed non-parties in reaching its
verdict. State v. Dann, 205 Ariz. 557, 570, ¶ 46, 74 P.3d 231, 244 (2003)
(quoting State v. Prince, 204 Ariz. 156, 158, ¶ 9, 61 P.3d 450, 452 (2003)). In
the end, this court need not decide the precise reason the jury found the
State was at fault and others were not; instead, the inquiry is whether, on


                                      23
                           GLAZER v. STATE
                           Opinion of the Court

this record, the jury properly could have allocated fault as reflected in the
verdict. See Mullin v. Brown, 210 Ariz. 545, 551, ¶ 24, 115 P.3d 139, 145
(App. 2005) (discussing that a general verdict will be upheld if evidence
on any one count, issue or theory sustains the verdict). Although the jury
properly could have made a different fault allocation, given the conflicting
evidence and credibility determinations involved, the superior court did
not abuse its discretion in denying the State’s motion for new trial based
on the jury allocating no fault to the truck driver.

                              CONCLUSION

¶50          Finding no error, the superior court’s judgment is affirmed.




                                  :MJT




                                     24
