Amanda Campion and James Campion v. City of Tucson

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

AMANDA CAMPION AND JAMES CAMPION, AS CO-GUARDIANS OF
ELI MENTZER, A MINOR,
Plaintiffs/Appellants,

v.

CITY OF TUCSON, A BODY POLITIC,
Defendant/Appellee.

No. 2 CA-CV 2022-0046
Filed September 11, 2023

Appeal from the Superior Court in Pima County
No. C20184459
The Honorable Kellie Johnson, Judge

AFFIRMED

COUNSEL

McNamara Law Firm PLLC, Tucson
By Michael F. McNamara and Claire E. McNamara
Counsel for Plaintiffs/Appellants

Udall Law Firm LLP, Tucson
By Cassandra Meynard and Jeanna M. W. Chandler
Counsel for Defendant/Appellee

Kristin K. Mayes, Arizona Attorney General
By Dwayne E. Ross, Christopher B. Davis, Lindsay M. Hughes, and
Rebecca A. Banes, Assistant Attorneys General, Phoenix
Counsel for Amicus Curiae State of Arizona
 CAMPION v. CITY OF TUCSON
Opinion of the Court

OPINION

Presiding Judge Eppich authored the opinion of the Court, in which
Chief Judge Vásquez and Judge Gard concurred.

E P P I C H, Presiding Judge:

¶1 Plaintiffs Amanda and James Campion (“the Campions”)
appeal from a final judgment in favor of defendant the City of Tucson (“the
City”) after a jury determined the City was immune under A.R.S. § 12-
820.03 from the Campions’ wrongful death claim. For the reasons stated
below, we affirm.

Factual and Procedural Background

¶2 In 2017, Anna Mentzer and her son, Ethan, were struck and
killed by a car while using a crosswalk in the City of Tucson. In 2018, the
Campions, as guardians and conservators of Eli, Anna’s surviving son, filed
suit against the City for the wrongful death of Anna under A.R.S. § 12-611.
The Campions alleged the City had acted negligently when, in 2002, it
replaced a monitored school crosswalk with an unmanned pedestrian
crosswalk at the incident location and maintained it as such thereafter.
They claimed the City failed to perform a traffic study before the
replacement, and the resulting change created an unreasonably dangerous
condition that caused Anna’s death.

¶3 The City moved for summary judgment, claiming immunity
under § 12-820.03, and the Campions filed a countermotion, arguing
immunity did not apply. The trial court denied both motions and, after
additional briefing, ordered that the issue of immunity would be tried
separately from the issues of liability and damages. At the trial on
immunity, the jury determined the City was immune from the Campions’
claims, and the court entered a final judgment in favor of the City. The
Campions moved for new trial under Rule 59, Ariz. R. Civ. P., alleging
numerous errors. The court denied the motion, and this appeal followed.
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1),
12-2102(B).

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I. Denial of Summary Judgment

¶4 The Campions argue the trial court improperly denied their
motion for partial summary judgment on the issue of whether the City was
entitled to a trial on its affirmative defense under § 12-820.03(A). The City
contends the ruling is not appealable. We agree.

¶5 On appeal, the Campions argue that the trial court erred by
misapplying § 12-820.03(A), which provides immunity to a public entity for
injuries “arising out of a plan or design for construction or maintenance of
or improvement to transportation facilities.” The statute requires the
proponent of the defense to prove, in part, that the “plan or design is
prepared in conformance with generally accepted engineering or design
standards in effect at the time.” § 12-820.03(A). The Campions argue the
standards with which the City claimed the crosswalk design complied are
not “generally accepted engineering or design standards” as a matter of
law. Id.

¶6 A denial of a motion for summary judgment is generally not
reviewable on appeal from a final judgment unless it is based on a purely
legal issue or the issue is preserved by moving for judgment as a matter of
law under Rule 50, Ariz. R. Civ. P., or by making some other post-trial
motion. Ryan v. Napier, 245 Ariz. 54, ¶ 14 (2018); John C. Lincoln Hosp. &
Health Corp. v. Maricopa County, 208 Ariz. 532, ¶ 19 (App. 2004); see also
Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465 (App. 1997) (denial of
summary judgment is an intermediate order only deciding case should go
to trial). A purely legal issue is one which does not require determination
of any predicate facts. John C. Lincoln, 208 Ariz. 532, n.5.

¶7 In this case, the City presented an expert’s declaration that the
Manual on Uniform Traffic Control Devices (MUTCD), which is published
by the Federal Highway Administration, provides “Standards, Guidelines,
Options and Support materials for the design and application . . . of traffic
control devices.” The declaration further stated that “[t]he design for the
[subject crosswalk] . . . , including traffic signs and pavement markings, met
or exceeded the traffic engineering and MUTCD Standards in effect at the
time.” The Campions countered by presenting expert opinions that the
subject crosswalk violated not only the MUTCD, but other City policies as
well.

¶8 As such, the facts regarding which engineering and design
standards applied and whether the subject crosswalk conformed to those
standards were disputed, and the court’s denial of the partial motion for

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summary judgment reflected that factual dispute. It follows that the ruling
was not based on a purely legal issue. See John C. Lincoln, 208 Ariz. 532, ¶ 19
(issue not purely legal where denial of summary judgment is based on
existence of material factual disputes); Sorensen, 191 Ariz. at 466 (summary
judgment denial not reviewable where issue before court involved mixed
question of law and fact).

¶9 The Campions raised the immunity issue again in their Rule
59 motion for a new trial—and again on appeal—but they only argue that
the trial court erred by denying their pretrial motion for summary
judgment and that the § 12-820.03 defense should never have proceeded to
trial. While our decision in John C. Lincoln implies an issue may be
preserved by a post-trial motion other than a Rule 50 motion for judgment
as a matter of law,1 we find no authority suggesting a motion for new trial
preserves the issue of whether the court improperly denied a pretrial
motion for summary judgment. 208 Ariz. 532, ¶ 19. Therefore, we decline
to review the issue.

II. Bifurcated Trial

¶10 The Campions argue that the trial court improperly held a
trial solely on the § 12-820.03 affirmative defense, before and separate from
a trial on liability and damages. They contend the language of § 12-
820.03(B) requires a trial on both the affirmative defense and liability
together with a separate bifurcated trial on damages only. In the
alternative, they argue the court abused its discretion under Rule 42, Ariz.
R. Civ. P., by bifurcating the trial.

¶11 At the outset, the Campions have not adequately shown that
they were prejudiced by the bifurcated proceeding. See Creach v. Angulo,
189 Ariz. 212, 214 (1997) (error must be prejudicial to substantial rights of
party to warrant reversal); Joshua J. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 417,
¶ 22 (App. 2012) (“We will not reverse for a procedural error absent a
showing of prejudice.”). The Campions state that the bifurcated trial
“limit[ed] their access to a jury trial and presentation of their case” and
“forced [them] to only present evidence as the court deemed relevant to the

1John C. Lincoln cites Richards v. City of Topeka, 173 F.3d 1247 (10th Cir.

1999) for this proposition. 208 Ariz. 532, ¶ 19. Richards only states that the
“proper method for redress of a [trial] court’s denial of summary judgment
based on factual issues is the filing of motions for judgment as a matter of
law during and after trial.” 173 F.3d at 1252.

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affirmative defense.” However, the Campions have not cited any legal
authority to support their assertion that their access to a jury trial was
improperly limited by bifurcation. And the Campions have not shown
prejudice by bifurcation, given their prejudice arguments are based on
unrelated evidentiary rulings. See Creach, 189 Ariz. at 214.

¶12 Turning to whether the trial court properly bifurcated the trial
under § 12-820.03(B), we review issues of statutory interpretation de novo,
Molera v. Reagan, 245 Ariz. 291, ¶ 8 (2018), and a decision to bifurcate for an
abuse of discretion, Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 5 (App. 2005).

¶13 The goal of statutory interpretation is to “effectuate legislative
intent.” Ariz. Chapter of the Associated Gen. Contractors v. City of Phoenix,
247 Ariz. 45, ¶ 7 (2019). In doing so, we first look to the statute’s plain
language, giving the words their ordinary meaning. Secure Ventures, LLC
v. Gerlach, 249 Ariz. 97, ¶ 5 (App. 2020). If there is only one reasonable
interpretation, we apply that interpretation, but if the language is
ambiguous, we consider such factors as “the context of the statute, the
language used, the subject matter, its historical background, its effects and
consequences, and its spirit and purpose.” Glazer v. State, 237 Ariz. 160,
¶ 12 (2015) (quoting Wyatt v. Wehmueller, 167 Ariz. 281, 284 (1991)).

¶14 Section 12-820.03(B) provides that “[i]f 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.”
The Campions argue that because the statute only mentions “trial on
damages,” the legislature has directed the issue of damages, but not
liability, be bifurcated. However, their argument is premised on a reading
of the statute which would require the issue of liability to be tried at the
same time as the affirmative defense. The statute’s plain language does not
mandate that result.

¶15 The statute is silent as to when the issue of liability is to be
tried. The only language limiting the scope of the issues to be adjudicated
in either trial is that the enumerated issues—immunity and damages—are
to be adjudicated in separate trials. See id.; see also City of Tempe v. Fleming,
168 Ariz. 454, 457 (App. 1991) (court will not read into statute something
not within manifest intent of legislature as indicated by statute itself);
City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965) (court will not “inflate,
expand, stretch or extend” statute to matters not within expressed
provisions). Therefore, bifurcating the trial so that the affirmative defense

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is tried first, with liability and damages tried later if necessary, does not run
afoul of § 12-820.03(B).

¶16 The Campions also argue that the trial court abused its
discretion under Rule 42(b) by bifurcating only the issue of immunity. “For
convenience, to avoid prejudice, or to expedite and economize, the court
may order a separate trial of one or more separate issues.” Ariz. R. Civ. P.
42(b). The trial court has broad discretion in exercising its severance power.
Cota v. Harley Davidson, 141 Ariz. 7, 11 (App. 1984); see also Morales v. Coffey,
No. 1 CA-SA 23-0040, ¶¶ 15-20, 2023 WL 5122710 (Ariz. App. Aug. 10, 2023)
(recognizing “broader framework” of Rule 42 as compared to bifurcation
requirement of § 12-820.03(B)). As the City argued to the trial court,
whether the crosswalk design was “in conformance with generally
accepted engineering or design standards in effect at the time,” § 12-
820.03(A), is similar but distinct from whether the City breached its duty of
care in regard to the Campions’ negligence claim, and trying the issues
together could confuse jurors. Furthermore, adjudicating the affirmative
defense as a preliminary matter promoted judicial economy by potentially
avoiding the need to go to trial on the negligence theory at all. Although
the Campions claim that the evidence relevant to both liability and the
affirmative defense overlapped, there was sufficient justification for the
bifurcation. Accordingly, the Campions have not shown the court abused
its discretion in holding a bifurcated trial.

¶17 The Campions further claim that the trial court erred by not
requiring the City to prove at the affirmative-defense trial that the injury
had arisen out of the plan or design for the subject crosswalk. See § 12-
820.03(A); Glazer, 237 Ariz. 160, ¶ 13 (requirement to prove “injury alleged
arose out of a plan or design”). However, they have not shown where this
argument was raised or ruled on in the record below, and raise it only in
the context of the propriety of bifurcation.2 See Ariz. R. Civ. App. P.
13(a)(7)(B); see also Ramos v. Nichols, 252 Ariz. 519, ¶ 8 (App. 2022) (issues
may be waived for noncompliance with rules of appellate procedure).
More importantly, they do not contend that such proof was lacking—
indeed, the entire crux of their argument is that the court improperly
precluded the Campions themselves from presenting such evidence, thus

2After oral argument in this court, the Campions unsuccessfully
sought to offer specific citations in support of this argument, and to broaden
it, in a motion to supplement and supporting reply.

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conceding the issue. See Glazer, 237 Ariz. 160, ¶ 16 (considering crux of
negligence claim in concluding injuries arose out of construction design). 3

III. Discovery

¶18 The Campions next argue that the trial court erred by
relieving the City from a prior order that had required it to disclose statistics
on similar pedestrian and auto collisions and denying the Campions’
related motion for a revised order on the same discovery. They further
claim the court erred in denying their motion for an order to show cause
and for sanctions for the City’s nondisclosure of accident history at a nearby
intersection. We review a court’s rulings on discovery issues for abuse of
discretion. State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, ¶ 12 (2000).

¶19 Before trial, the Campions moved the trial court to compel the
City to disclose “police reports and claims on substantially similar cases.”
The court, relying on Rule 26(b)(1), Ariz. R. Civ. P., ordered the City to
disclose certain information regarding “substantially relatable claims . . .
involving pedestrians and motor vehicle collisions . . . from January 2002,
through present” but only along a limited section of Pima Street. The City
disclosed some information, but the Campions filed a motion for sanctions
alleging the City had violated the court’s order by failing to disclose or
redacting certain information.

¶20 The Campions later renewed their discovery motion, again
requesting the trial court order that the City disclose “substantially similar
accidents and claims.” The court granted the renewed motion in part,
ordering the City to disclose statistics only on pedestrian and automobile
collisions from 2002 to 2017 at unsignalized intersections or crosswalks that
met specific criteria similar to the crosswalk at issue. The Campions then
moved for a revised order, requesting the court to clarify the scope of the
City’s disclosure obligations regarding similar accidents or claims. The City
objected and simultaneously moved for relief from the order, arguing that
compliance would be overly burdensome and disproportionate to the
needs of the case. After a hearing, the court granted the City’s motion for

3It appears that, in denying summary judgment on the immunity

defense, the trial court implicitly found no genuine issue of fact as to
whether the injury arose out of a plan or design, finding factual issues only
as to the other elements of the defense.

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relief and denied the Campions’ motion for a revised order. The court also
denied the Campions’ motion for an order to show cause and for sanctions.

¶21 Trial courts have broad discretion in ruling on disclosure and
discovery matters. Marquez v. Ortega, 231 Ariz. 437, ¶ 14 (App. 2013). This
discretion “includes the right to decide controverted factual issues, to draw
inferences where conflicting inferences are possible and to weigh
competing interests.” Brown v. Superior Court, 137 Ariz. 327, 332 (1983).
Rule 26(b)(1) defines the scope of discovery:

Parties may obtain discovery regarding
any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the
needs of the case, considering the importance of
the issues at stake in the action, the amount in
controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the
issues, and whether the burden or expense of
the proposed discovery outweighs its likely
benefit.

The Campions first argue that the trial court improperly disregarded the
relevance to their claims of accidents at other similar crosswalks. We agree
with the Campions that evidence of substantially similar incidents may be
relevant to whether the City should have foreseen any danger posed by the
crosswalk at issue in regard to the Campions’ negligence theory. See Grant
v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 449-50 (1982); Quiroz v. ALCOA Inc.,
243 Ariz. 560, ¶ 9 (2018) (foreseeability used to determine breach of
standard of care). We also acknowledge that the disclosure sought bears
relevance to whether the crosswalk presented an “unreasonably dangerous
hazard[]” under the § 12-820.03(A) affirmative defense. See Glazer, 237 Ariz.
160, ¶ 32. However, relevance is not the only consideration under Rule
26(b)(1). Relevant discovery must also be proportional to the needs of the
case. Ariz. R. Civ. P. 26(b)(1).

¶22 Although the trial court did not expressly provide its
reasoning behind granting the motion for relief, it appears it implicitly did
so by properly considering the proportionality factors set forth in Rule
26(b)(1). In support of its motion for relief, the City presented an affidavit
of one of its traffic engineers that stated identifying the intersections and
crosswalks meeting the criteria under the order “would take weeks or more
to accomplish and would require resources that the City Department of

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Transportation and Mobility does not have.” It appears the court’s ruling
turned on this point, noting that it had previously expanded its order
largely based on the Campions’ having represented that compliance with
the order would be easy for the City. And now that the City had given
reasons why compliance would be difficult, the court noted it was inclined
to grant relief. On appeal, the Campions generally challenge the affidavit
and reargue the evidence regarding the City’s claim that compliance with
the order would have been “overly burdensome.” However, we decline to
reweigh conflicting evidence on appeal. See Clark v. Kreamer, 243 Ariz. 272,
¶ 14 (App. 2017).

¶23 The evidence in the record supports a finding that the burden
on the City of producing the information sought outweighed its likely
benefit, and the trial court therefore did not abuse its discretion in granting
the City’s motion for relief from the order. See Ariz. R. Civ. P. 26(b)(1); Tilley
v. Delci, 220 Ariz. 233, ¶ 16 (App. 2009) (“‘Abuse of discretion’ is discretion
manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.”).4

¶24 The Campions also claim the trial court erroneously denied
their renewed motion to show cause and for sanctions, but fail to develop a
meaningful argument on the issue. Because we are unable to determine the
legal grounds upon which they challenge the ruling, we decline to address
it. See In re J.U., 241 Ariz. 156, ¶ 18 (App. 2016) (“We generally decline to
address issues that are not argued adequately, with appropriate citation to
supporting authority.”).

¶25 The Campions further allege numerous “discovery
violations,” and generally claim that “[t]he Court’s rulings improperly
abided and rewarded the City’s years-long effort to avoid its discovery
obligations.” They argue that Rule 26.1, Ariz. R. Civ. P., imposed on the
City a duty to disclose relevant information at the outset, but it had
“disclosed no documents regarding similar accidents,” even after specific
discovery requests. Yet, the Campions do not cite any orders they challenge
related to these alleged violations, and we decline to review them. Id.; Ariz.

4It necessarily follows that the court also did not abuse its discretion

in denying the Campions’ motion for a revised order on the same
disclosure. The Campions’ motion for a revised order references a
“proposed amended form of Order.” However, they did not cite to the
proposed order in the record on appeal in their briefs, and we have denied
their post-oral argument request to supplement the record with a copy.

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R. Civ. App. P. 13(a)(7)(B) (each contention must include “references to the
record on appeal where the particular issue was raised and ruled on”). To
the extent they raise these complaints in relation to the orders they have
unsuccessfully identified as error, we conclude they are not relevant
considerations. See Ariz. R. Civ. P. 26(b)(1).

IV. Evidentiary Rulings

¶26 The Campions also claim the trial court made numerous
erroneous evidentiary rulings, excluding evidence as irrelevant to the
affirmative defense. We review evidentiary rulings for an “abuse of
discretion” and “will not reverse unless unfair prejudice resulted or the
court incorrectly applied the law.” Larsen v. Decker, 196 Ariz. 239, ¶ 6 (App.
2000) (citation omitted). Evidence is relevant if “it has any tendency to
make a fact more or less probable than it would be without the evidence”
and “the fact is of consequence in determining the action.” Ariz. R. Evid.
401.

A. Policy 7.44

¶27 The Campions claim the trial court erroneously excluded City
of Tucson Department of Transportation Policy 7.44 (“Policy 7.44”),
adopted in 2014, which provided “guidance for the removal of pedestrian
crosswalk pavement marking and signage.” The minute entry reflects that
the court precluded mention of the policy because it was “not relevant to
any prong of the immunity trial.” The Campions contend that it was
relevant to show that the crosswalk was dangerous and to impeach the
City’s design expert.

¶28 Policy 7.44 provides that an engineering study is to be
performed before installing new marked crosswalks at unsignalized
locations and also when considering removal of an existing crosswalk. It
states that crosswalks that are noncompliant with the standards it sets forth
“will be removed at such time in which the roadway surface is scheduled
to be removed and replaced.” The policy notes that many of the City’s
crosswalks “were striped without the benefit of an engineering study,”
admitting that “[s]tudies have shown . . . in certain situations, pedestrian-
related crashes increase with the presence of a marked crosswalk.”

¶29 We disagree with the Campions that the policy is evidence
that the particular crosswalk at issue here posed an “unreasonably
dangerous hazard[]” under § 12-820.03(A). Although Policy 7.44 generally
states that there are circumstances that may increase the risk of crosswalk

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accidents, it makes no specific findings or acknowledgments of
dangerousness regarding the City’s existing crosswalks. Furthermore, the
Campions were not prejudiced by exclusion of the policy as the jury heard
about the study underlying the policy itself (the “Zegeer study”), as well as
expert testimony that, based on the study, the specific crosswalk at issue
posed an increased safety risk.

¶30 We are also not persuaded by the Campions’ argument that
the alleged error was compounded when the trial court allowed the City to
“insinuat[e] a Policy 7.44 approach to the problem was acceptable without
fair cross-examination that the approach was premised on the Zegeer
standard.” In cross examining one of the City’s witnesses, the Campions
asked whether the City of Phoenix removed any crosswalks as a result of
the Zegeer study, to which the witness responded that it did “[d]uring
resurfacing projects.” On redirect, the witness agreed that Tucson has a
similar practice of “remov[ing] non-candidate locations consistent with
resurfacing.” Counsel for the Campions objected, claiming the City
“brought up [P]olicy 7.44 as a defense.” The court overruled the objection.

¶31 Based on this record, we disagree that the City “insinuat[ed]”
the removal practice was an “acceptable” approach or brought it up as a
defense. Rather, the City’s questioning was in response to the statement
the Campions elicited during cross examination, and the actual policy was
never mentioned. Moreover, Policy 7.44 was adopted more than a decade
after the school crosswalk had been replaced by the pedestrian crosswalk
at issue, and thus had no bearing on the design standard that then existed.
The policy therefore remained irrelevant to the issues at trial, and the
Campions have shown no abuse of discretion in its exclusion.5 See Larsen,
196 Ariz. 239, ¶ 6.

B. Other Accidents

¶32 The Campions next claim the trial court erred by excluding
evidence of accidents at the nearby “Pima/Rook” crosswalk. In excluding

5The Campions also argue that “[e]vidence of a defendant’s own

policies and procedure [is] admissible as bearing on the standard of care.”
However, the “standard of care” is a negligence issue, and the court’s order
limited its exclusion of Policy 7.44 to the first phase of trial on the § 12-
820.03 immunity defense. Napier, 245 Ariz. 54, ¶ 17 (“To recover on a
negligence claim, a plaintiff must prove a duty requiring the defendant to
conform to a standard of care . . . .”).

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the evidence, the court found that the Campions had not properly disclosed
the accidents as a basis for their expert’s opinion that the crosswalk at issue
was unreasonably dangerous. The court also found that the accidents were
not otherwise admissible because they were not substantially similar to the
accident at issue.

¶33 The Campions first contend that they properly disclosed the
Pima/Rook accidents, contrary to the trial court’s finding. Rule 26.1(d)(4)
requires that expert witnesses provide a report containing “a complete
statement of all opinions the expert will express and the basis and reasons
for them” as well as “the facts or data considered by the expert in forming
them.” If a party fails to disclose information Rule 26.1 requires to be
disclosed, that party “may not use the information . . . as evidence at trial.”
Ariz. R. Civ. P. 37(c)(1). The Campions point to several items in the record
as evidence they complied with the disclosure requirements, none of which
constitute a signed written report by their expert stating he considered the
Pima/Rook accidents or that the accidents provided a basis for his opinions.
See Ariz. R. Civ. P. 26.1(d)(4). Therefore, the court’s ruling was not error on
this ground.

¶34 The Campions next contend that the Pima/Rook accidents
should have otherwise been admissible because they were “substantially
similar with respect to the defect at issue.” While our supreme court has
stated that “[e]vidence of previous accidents tends to prove the existence of
a dangerous condition,” it must still be shown “that the previous conditions
were substantially similar to the conditions resulting in the accident at
issue.” Burgbacher v. Mellor, 112 Ariz. 481, 483 (1975); see also Slow Dev. Co.
v. Coulter, 88 Ariz. 122, 125 (1960) (“[E]vidence of other similar accidents at
or near the place suffered by persons other than the plaintiff, at different
times, not too remote in point of time, is admissible.”).

¶35 As an offer of proof that the Pima/Rook accidents were
substantially similar, the Campions provided the trial court with a letter
from their expert stating such. In the letter, the expert compared the
crosswalks using commonly used traffic engineering criteria and concluded
that the Pima/Rook crosswalk and the subject crosswalk “are substantially
similar as pedestrian crossings” and that “[t]he risk of these intersections is
substantially similar.” However, despite noting the specific circumstances
under which the Pima/Rook accidents had occurred, it does not compare
them to the circumstances of the accident at issue. In precluding evidence
of the Pima/Rook accidents, the court found that the Pima/Rook area “is
quite different than the area involved in our collision” and that there was

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“no similarity that would make these incidents relevant to the issue before
this jury.” The court listed several specific differences at the Pima/Rook
crosswalk, including the fact that there are businesses and an apartment
complex there. The court also noted differences in the circumstances of the
other accidents, including the time and manner in which they had occurred.

¶36 We agree with the Campions that “it is not necessary that it
be shown that such accidents occurred under circumstances precisely the
same as those surrounding the accident in question” and that “it is
sufficient that they are similar in their general character.” Slow Dev. Co.,
88 Ariz. at 126. However, we find nothing in the record suggesting the trial
court applied the incorrect standard. We also cannot conclude that the
court’s ruling is unsupported by the record. The Campions’ lack of citation
to relevant portions of the record on appeal prevent us from assessing the
appropriateness of those findings, specifically with respect to the
circumstances of the accident that is the subject of the suit. See Adams v.
Valley Nat’l Bank of Ariz., 139 Ariz. 340, 343 (App. 1984) (“We are not
required to assume the duties of an advocate and search voluminous
records and exhibits to substantiate an appellant’s claims.”). Even if a
different court might have reached the opposite conclusion, we cannot find
an abuse of discretion unless “the lower court exceeded the bounds of
reason by performing the challenged act.” Toy v. Katz, 192 Ariz. 73, 83 (App.
1997), disapproved of on other grounds by Sholem v. Gass, 248 Ariz. 281, ¶ 21
(2020). Therefore, the court did not abuse its discretion in excluding
evidence of the Pima/Rook accidents.

¶37 The Campions also argue that “[n]o authority supported the
Trial Court’s conclusion that an expert’s opinion regarding other accidents
is a required predicate for their admissibility.” However, they do not cite
the record to show where the court reached such a conclusion. The court
made two distinct rulings: (1) it precluded the Campions from eliciting
opinions from their expert “regarding accidents at other intersections as a
basis for his opinion in this case”; and (2) it otherwise precluded the
evidence as irrelevant. As to the former, the court found that such an
opinion had not been disclosed. As to the latter, the court found that the
other accidents were not substantially similar. We find no error.

C. Absence of Accident History

¶38 The Campions next claim that the trial court erred by allowing
the City to claim during opening statements that there was no accident
history at the subject crosswalk. However, they make no reference to the
record on appeal “where the particular issue was raised and ruled on.”

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Opinion of the Court

Ariz. R. Civ. App. P. 13(a)(7)(B). We are not obligated to search the record
to determine if the issue was raised below. See Gibson v. Boyle, 139 Ariz. 512,
521 (App. 1983). The issue is therefore waived. See In re Aubuchon, 233 Ariz.
62, ¶ 6 (2013) (arguments waived when “not supported by adequate
explanation, citations to the record, or authority”).

¶39 The Campions also claim the trial court erred by refusing to
give a corrective jury instruction in light of the City arguing and presenting
testimony regarding the lack of accident history at the incident site. We
review the court’s refusal to give a requested jury instruction for an abuse
of discretion. See Dupray v. JAI Dining Servs. (Phx.), Inc., 245 Ariz. 578, ¶ 22
(App. 2018).

¶40 During opening statements, counsel for the City told the jury
that they had “looked at a database that is held by ADOT, and . . . found
that there were no pedestrian or bicyclist crashes within 250 feet of this
intersection, including the crosswalk, during the period between 2005 and
2017.” Counsel also stated that the Campions had “dug deeper and got
records from 2001 of police contacts related to this intersection,” and there
had been nothing “indicat[ing] a pedestrian motor vehicle crosswalk
[accident] from 2001 to 2017.” In support of this assertion, an expert for the
City testified that state crash records dating to the beginning of 2005
revealed no pedestrian crash records within 250 feet of the subject
intersection.

¶41 The Campions filed a motion arguing that pursuant to Jones
v. Pak-Mor Manufacturing Co., 145 Ariz. 121 (1985), they were entitled to the
following jury instruction:

For a defendant to claim an absence of
accident history evidences a lack of an
unreasonably dangerous condition, it must
prove it has a system to determine if incidents
are occurring and being evaluated. In this case,
the City of Tucson claims it does not have such
a system to identify crosswalks which meet the
criteria to be a “Zegeer crosswalk.” You are to
disregard the statement made in opening
statement by the City of Tucson as to the
absence of an accident history at the Mountain
View and Pima crosswalk.

The trial court denied the motion.

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Opinion of the Court

¶42 Because the proposed jury instruction is an incorrect
statement of the law, the trial court did not abuse its discretion in refusing
to adopt it. See State v. Cox, 214 Ariz. 518, ¶ 17 (App. 2007). A court
determines the admissibility of no-prior-accident evidence under Rule 403,
Ariz. R. Evid. Pak-Mor Mfg. Co., 145 Ariz. at 126-27. Relevant to this
analysis is whether the proponent has made a showing “that if there had
been prior accidents, the witness probably would have known about them.”
Id. at 127. If no such showing is made, the court “generally should refuse
the offered evidence,” in its discretionary weighing of the probative value
of the evidence against the potential for undue prejudice. Id. (emphasis
added). In the absence of this “evidentiary predicate,” the evidence “has
very little probative value and carries much danger of prejudice.” Id. The
Campions’ requested instruction would improperly remove the court’s
discretion to determine whether no-prior-accident evidence is admissible
in this particular circumstance under Rule 403. See id. at 128-29.

¶43 Furthermore, the relevant issue at trial was whether the
incident crosswalk presented an “unreasonably dangerous hazard[].” § 12-
820.03(A). The City’s comment during opening statements and the
testimony related thereto was only pertinent to the safety history of the
incident crosswalk, and the requested instruction mischaracterizes this
evidence by suggesting there must be, more broadly, “a system to identify
crosswalks which meet the criteria to be a ‘Zegeer crosswalk.’” We
therefore conclude the court did not err by refusing to give the Campions’
requested instruction.

D. Exclusion of Video Evidence

¶44 The Campions next claim the trial court erred by excluding a
26-second video taken in 2020 depicting the perspective of a driver
approaching and passing through the subject crosswalk. In arguing for its
admission, the Campions admitted that the crosswalk signage in the video
differed from what it had been at the time of the accident. The court
excluded the evidence, reasoning that it was “more problematic and more
prejudicial than probative.”

¶45 On appeal, the Campions argue that the discrepancy in
signage “could be simply explained as such and would not have confused
anyone.” They also claim that exclusion of the video was “especially
prejudicial” because the jury was unable to do a site inspection and
photographs of the intersection “failed to capture the experience of a driver
in motion, going the speed limit . . . and the impact of the crosswalk’s
visibility and time for a motorist to react going that speed limit.”

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 CAMPION v. CITY OF TUCSON
Opinion of the Court

¶46 However, the Campions have not established that the trial
court abused its discretion by excluding the video. Rule 403 allows the trial
court to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Here, the probative value of the video was
decidedly low—it was taken years after the accident in question and, by the
Campions’ own admission, was not an accurate depiction of the crosswalk
at the time of the accident. In contrast, the risk of confusing the issues or
misleading the jury was substantial in that the video could raise the
ancillary issue of why there had been a change after the accident. The court
also indicated that, depending on the reasons for the change, the video
could constitute evidence of a subsequent remedial measure. Evidence of
subsequent remedial measures “that would have made an earlier injury or
harm less likely to occur,” is not admissible to prove “a defect in a product
or its design” or “a need for a warning.” Ariz. R. Evid. 407. The record
therefore supports the court’s exclusion of the video under Rule 403.

E. Exclusion of Federal Highway Administration (FHWA)
Report

¶47 The Campions also claim that the trial court erred by
excluding an FHWA-sponsored report from 2000. On direct examination,
one of the Campions’ expert witnesses was presented with the FHWA
report and testified that he “didn’t rely on [it]” and that the document “was
not one of the ones [he] referenced” in formulating his opinions. The
Campions then moved to have the report admitted, and the City objected
arguing that “[t]he expert did not rely on it.” The court sustained the
objection.

¶48 The Campions argue the FHWA report is admissible under
Rule 703, Ariz. R. Evid. However, in discussing Rule 703, our supreme
court has instructed that on direct examination, an expert witness “may
disclose facts or data that have not been admitted in evidence—and that
may not be admissible—if they form a basis for his opinion.” State v.
Lundstrom, 161 Ariz. 141, 145 (1989). Here, the Campions’ expert explicitly
stated he did not rely on the FHWA report in formulating his opinion.6 We

6The expert at one point stated, “It does have some information in

both treatments I have seen in other places, but I used this document.”
However, based on the context of the statement, we cannot conclude he was
asserting the FHWA report formed a basis for his opinion in this case,

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Opinion of the Court

therefore conclude that Rule 703 does not provide a basis for the expert to
have even disclosed the contents of the report through testimony, let alone
for admission of the report into evidence, and the trial court did not abuse
its discretion.7

¶49 The Campions also argue that the FHWA report should have
been admitted because it was relevant to the trial issue of whether the
subject crosswalk was unreasonably dangerous and whether there were
adequate warnings. See § 12-820.03(A). They also assert the report was
“highly relevant impeachment evidence.” But, they do not cite to the record
to show where these arguments were presented to the trial court such that
it had an opportunity to address their merits, and they are therefore waived
on appeal. See In re Aubuchon, 233 Ariz. 62, ¶ 6; BMO Harris Bank N.A. v.
Espiau, 251 Ariz. 588, ¶ 25 (2021) (argument not timely raised below waived
on appeal).

F. Cross Examination of City Expert Witness

¶50 The Campions next claim that the trial court improperly
precluded them from asking an expert witness for the City about his
previous testimony in a different case or the “implications” of that case.8 It
is not clear from the Campions’ opening brief exactly what they sought to
elicit from the expert, but to the extent they claim they should have been
permitted to question him about the court’s legal conclusions in the other
case, they have cited no authority suggesting that would have been proper.
To the extent they sought to elicit something else, their argument is waived
having not sufficiently cited to the record or legal authority which would
allow us to adequately address it. See In re Aubuchon, 233 Ariz. 62, ¶ 6.

particularly because he explicitly denied having relied on it immediately
before.
7We note that the City failed to respond to the Campions’ argument

regarding the FHWA report, and although we may treat this as a confession
of error, we refrain from doing so where there is no error. See In re
$26,980.00 U.S. Currency, 199 Ariz. 291, ¶ 20 (App. 2000).
8On appeal in the other case, Xiao Ping Chen v. City of Seattle, 223 P.3d

1230, 1239 (Wash. Ct. App. 2009), which had similar facts to this case, the
court rejected the City of Seattle’s argument that “it did not breach its duty
to maintain the crosswalk in a safe condition because the MUTCD did not
require it to install additional safety measures at [a] crosswalk.”

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Opinion of the Court

¶51 The Campions also argue the trial court erred by allowing the
same expert for the City to offer “non-responsive and undisclosed
testimony,” which they allege violated Rule 26.1(d). This argument is also
waived as they do not identify any specific ruling they challenge. See BMO
Harris Bank N.A., 251 Ariz. 588, ¶ 25.

V. “Legal Duty” Jury Instruction

¶52 The Campions claim the trial court erred by refusing to give
the jury the following instruction: “St. Cyril School had no legal duty with
respect to the design change, maintenance, and removal (or non-removal)
of the subject crosswalk from 2002 to the present. No fault may be allocated
to St. Cyril School in this case.”9 They argue that the City “repeatedly
asserted and had witnesses . . . speak extensively to [the school’s]
responsibilities regarding the subject crosswalk, . . . insinuating a duty and
responsibility,” and thus the school effectively became “an unnamed
nonparty at fault.” As previously stated, we review the court’s refusal to
give a requested jury instruction for an abuse of discretion. See Dupray,
245 Ariz. 578, ¶ 22.

¶53 In rejecting the proposed instruction, the trial court reasoned
that it was unnecessary given the limited issues before the jury at that
particular phase. We agree. The only issue to adjudicate at the trial was
whether the City was immune from the Campions’ claims under the § 12-
820.03(A) affirmative defense. The jury was therefore only tasked with
deciding whether the plan or design for the subject crosswalk had been
“prepared in conformance with generally accepted engineering or design
standards” and whether the City had given the public “a reasonably
adequate warning of any unreasonably dangerous hazards.”
§ 12-820.03(A). “Legal duty” and “fault” were not relevant considerations,
and inclusion of an instruction referencing these terms posed a risk of
misleading the jury. See State v. Ewer, 254 Ariz. 326, ¶ 11 (2023) (misleading
jury instructions are improper). Therefore, the court did not abuse its
discretion in excluding the Campions’ requested instruction.

9Early in the litigation, the City named St. Cyril School as a nonparty

at fault based in part on the fact that the principal had submitted a request
to the City in 2002 that the abutting school crossing revert to a pedestrian
crossing. The school was added as a defendant, but was subsequently
dismissed from the action for reasons unrelated to this appeal.

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VI. Absolute Immunity for Adopting Policy 7.44

¶54 The Campions also claim the trial court erred by granting the
City’s pretrial motion for partial summary judgment and ruling that under
A.R.S. § 12-820.01 the City was “entitled to absolute immunity for its
decision not to remove the crosswalk when it evaluated the crosswalk
under [Policy] 7.44.” The Campions request that we reverse this ruling so
that it “is not in place if this Court remands and allows the Campions to
pursue their negligence claim.” Because the final judgment resulted from
the jury verdict that the City was entitled to immunity from the Campions’
claims under § 12-820.03(A), and because we have not identified errors
warranting reversal of that judgment, we need not address whether the
City’s motion for partial summary judgment under § 12-820.01 was granted
in error. See Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co.,
231 Ariz. 517, n.1 (App. 2013) (issues not affecting disposition need not be
resolved).

VII. Request for Sanctions and Attorney Fees

¶55 The City requests we sanction the Campions’ counsel and
award reasonable costs and fees for defending this appeal under Rule 21(a)
and Rule 25, Ariz. R. Civ. App. P. Under Rule 25, we may impose attorney
fees as a sanction if we determine that the appeal is “frivolous or was filed
solely for the purpose of delay,” or based on a violation of the Arizona Rules
of Civil Appellate Procedure. Although we have identified Rule 13(a)(7)
deficiencies in the Campions’ brief, particularly with respect to citations to
the record, we decline to impose sanctions under Rule 25 in our discretion.
See Villa De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 27 (App. 2011)
(Rule 25 sanctions discretionary). However, as the prevailing party, the
City is entitled to its costs on appeal upon compliance with Rule 21(b).
See A.R.S. § 12-342(A).

Disposition

¶56 For the foregoing reasons, we affirm.

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