Fong v. Phoenix

551 P.3d 1187

Ellen FONG, Plaintiff/Appellant,

v.CITY OF PHOENIX, et al., Defendants/Appellees.

No. 1 CA-CV 23-0520

Court of Appeals of Arizona, Division 1.

Filed June 6, 2024

Appeal from the Superior Court in Maricopa County, CV2021-013212, The Honorable Joan M. Sinclair, Judge. REVERSED

Shorall McGoldrick Zerlaut, Phoenix, By Thomas J. Shorall, Jr., Scott M. Zerlaut, Counsel for Plaintiff/Appellant

Broening Oberg Woods & Wilson, P.C., Phoenix, By Kelley M. Jancaitis, Jessica J. Kokal, Jonathan Y. Yu, Counsel for Defendant/Appellee City of Phoenix

O’Connor & Dyet, P.C., Tempe, By Daniel J. O’Connor, Travis B. Hill, Counsel for Defendant/Appellee Trafficade Service, LLC

Presiding Judge Daniel J. Kiley delivered the opinion of the Court, in which Judge Kent E. Cattani and Judge D. Steven Williams joined.

OPINION

KILEY, Judge:

¶1 Ellen Fong was badly hurt when she fell into a ditch excavated by workers repairing an underground water pipe. She sued the City of Phoenix (the "City") and its independent contractor, Trafficade Service LLC ("Trafficade") (collectively, "Defendants"), alleging that they neither adequately warned of nor properly secured the excavation site. The superior court granted summary judgment in Defendants’ favor due to Fong’s failure to present expert testimony on the applicable standard of care and breach thereof. Concluding that expert testimony was not required to establish the standard of care and breach, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 Fong and her boyfriend John Belpedio went for a bicycle ride in Phoenix on December 6, 2020. Viewed in the requisite light most favorable to Fong as the party against whom summary judgment was granted, see Doe v Roman Cath. Church of Diocese of Phoenix, 255 Ariz. 483, 486, ¶ 2, 533 P.3d 214, 217 (App. 2023), the evidence shows that Fong and Belpedio rode north on 8th Avenue before turning west onto Washington Street, a one-way street. Three of Washington Street’s four motor vehicle lanes were closed due to ongoing repairs of an underground water main. As they rode single file in the marked bike lane with Fong in the lead, Fong and Belpedio saw barricades and signs redirecting motor vehicle traffic. The barricades and signs had been set up by Trafficade, which had been hired by the City to provide traffic control devices. Fong and Belpedio did not see any signs or barricades indicating that the bike lane was closed.

¶3 The signage that Trafficade ordered for delivery to the construction site on Washington Street included three bike lane-specific signs, reading "Bike Lane Closed Ahead," "Bike Lane Closed," and "Bikes May Use Full Lane," respectively. For unexplained reasons, however, these three signs were not in place that day.¹

¶4 As they approached 10th Avenue, Fong and Belpedio saw a parked construction truck blocking the bike lane. After pedaling past the truck on the right side, they moved back into the bike lane and continued heading west. Fong then rode into an eight-by-eight-foot, four-foot-deep excavation that encroached into the bike lane. The excavation was uncovered, unbarricaded, and obscured by the shadow of a nearby backhoe. Fong suffered severe injuries from the fall.

¶5 At the time of the accident, most of the work crew was on lunch break. Only one member of the work crew stayed behind to "protect the job site." Although the crew member later testified at a deposition that he sat "on [his] backhoe" so that he could "see people that [were] coming," he also admitted that he was "on the phone with [his] wife talking" and "wasn’t really paying attention." He further testified that he saw Fong approaching and called out, "Ma’am, there’s a hole right here," but she gave no indication that she heard him.

¶6 Fong sued the City for negligence, later adding Trafficade as a defendant. After the deadline for initial expert disclosures had passed (but before the deadline for rebuttal expert disclosures), Trafficade moved for summary judgment, arguing that Fong could not establish the applicable standard of care without expert testimony. The City joined Trafficade’s motion, arguing that Trafficade’s alleged negligence "is the only conduct which forms the basis for the claim" against the City and thus the City was entitled to summary judgment to the same extent as Trafficade.

¶7 Fong then served a supplemental disclosure statement identifying an additional theory of liability against the City—namely, that the City was independently negligent for failing to cover or adequately monitor the excavation site during the crew’s lunch break. The City then moved for summary judgment as to this claim, arguing that Fong had not "timely disclosed expert testimony establishing a prima facie case of independent negligence against the City."

¶8 The court granted summary judgment in Defendants’ favor, concluding that Fong’s failure to present expert testimony to establish the applicable standard of care (and breach thereof) was fatal to her claims. Noting that traffic control standards are set forth in "traffic control plans" and related manuals, the court reasoned that "[a] jury cannot be expected to wade through hundreds of pages of technical documents without guidance to determine if the Defendants complied with these manuals." The court likewise found that Fong’s theory of independent negligence by the City failed for lack of expert testimony regarding the standard of care and breach thereof.

¶9 The court entered final judgment and Fong timely appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶10 Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review a grant of summary judgment de novo and view the evidence and reasonable inferences in the light most favorable to Fong as the non-moving party. See Zambrano v. M & RC II LLC, 254 Ariz. 53, 58, ¶ 9, 517 P.3d 1168, 1173 (2022).

I. Standard of Review

¶11 Although Defendants concede that the grant of summary judgment is reviewed de novo, they contend that this Court must defer to the superior court’s determination that expert testimony is necessary to establish Fong’s negligence claim. In support of their position, Defendants cite Warner v. Southwest Desert Images, LLC, in which we stated:

At trial, "the determination of areas where expert testimony is appropriate is within the trial court’s discretion." State v. Mosley, [119 Ariz. 393, 400, 581 P.2d 238, 245 (1978)]. We see no reason the same standard should not apply to a trial court’s decision whether expert testimony is required [to prove the licensed professional’s standard of care or liability for the claim] under [A.R.S.] § 12-2602.

218 Ariz. 121, 128, ¶ 14, 180 P.3d 986, 993 (App. 2008). Warner held that the superior court erred in dismissing a plaintiff’s negligence claim against a licensed professional for failure to provide a preliminary expert opinion affidavit pursuant to § 12-2602(B) because the court failed to give the plaintiff a chance to cure her omission as required by § 12-2602(E). See id. at 129, ¶¶ 19-20, 180 P.3d at 994. Because the Warner court’s statement about the standard of review applicable to a trial court’s decision that a plaintiff’s claim requires expert support was not necessary to Warner's holding that the superior court erred by failing to adhere to § 12-2602(E)’s procedural requirements, it is not binding. See Olewin v. Nobel Mfg., LLC, 254 Ariz. 346, 351, ¶ 19, 523 P.3d 413, 418 (App. 2023) (noting that a court’s statement of law "unnecessary to its decision" is obiter dictum and "thus not precedential") (quoting Alejandro v. Harrison, 223 Ariz. 21, 25, ¶ 12, 219 P.3d 231, 235 (App. 2009)).

¶12 Further, to the extent Warner interpreted Mosley as standing for the proposition that a trial judge’s determination that expert testimony is required to prove the plaintiff’s claim is reviewed for abuse of discretion, we disagree. In Mosley, the Arizona Supreme Court held that the superior court did not abuse its discretion in allowing a detective to testify at a criminal trial about the significance of the "trackmarks" he observed on the defendant’s arms, explaining that "the determination of areas where expert testimony is appropriate is within the trial court’s discretion." 119 Ariz. at 399-400, 581 P.2d at 244-45. By relying on Mosley for the proposition that a trial judge’s determination that expert testimony is required to prove the plaintiff’s claim is reviewed for abuse of discretion, Warner erroneously conflated the standard of review that applies to a determination that expert evidence is admissible with the standard that applies to a determination that a claim is not viable without expert support.

[1–3] ¶13 As courts that have considered the issue have recognized, whether expert testimony is admissible and whether it is required "are meaningfully different questions." KS Condo, LLC v. Fairfax Vill. Condo. VII, 302 A.3d 503, 508 n.1 (D.C. 2023). The admissibility of expert testimony is generally a fact-bound inquiry that focuses on whether the proffered expert has sufficient knowledge, skill, experience, or education to "provide the jurors with useful information outside their common understanding or experience." State v. Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251 (1986); see also Ariz. B. Evid. 702(a). Like other fact-intensive determinations, the admissibility of expert testimony is reviewed for abuse of discretion, Cf. Valley Med. Specialists v. Farber, 194 Ariz. 363, 366-67, ¶ 11, 982 P.2d 1277, 1280-81 (1999) (when a decision requires "a fact-intensive inquiry," "we will give substantial deference both to the trial court’s findings of fact and its application of law to fact").

[4, 5] ¶14 By contrast, whether expert testimony is necessary to prove a plaintiff’s claim requires the court to determine whether the plaintiff’s evidence,...