It was more than three years ago that Lawrence Beck left his residence in Sierra Vista for an afternoon bicycle ride to Tombstone and back. But things did not go as planned for Beck, who is suing the city for injuries sustained after his bike crashed on a public roadway.
This spring a Cochise County jury will decide whether the City of Sierra Vista is responsible for more than $1 million in medical expenses, lost wages, and personal damages. Several witnesses are expected to testify at the four-day trial, including Beck, medical providers, various city and county employees, and engineering consultants hired by both sides.
The county’s jury commissioner will summon several dozen prospective jurors for the trial set to begin April 12. From those, Judge Terry Bannon will empanel 9 or 10, although only 8 will actually deliberate once both sides present their cases. Under Arizona law, the agreement of at least six of the eight is required to reach a verdict.
It was on Nov. 12, 2018 that Beck headed east on Charleston Road along a popular bike route known locally as “the Tombstone Loop.” He claims to have been riding in the designated shoulder of the roadway approaching Buena High School when the hard stable pavement reportedly turned into loose gravel without any notice.
Beck lost control of his bicycle and crashed to the ground. When he filed a notice of claim against the city six months later, his medical bills were already at $230,000 with more expected. He also had claimed to have lost more than $33,000 in income.
Beck’s lawsuit argues that the change in road surface was not an open and obvious condition, and as such constituted “an unreasonably dangerous condition” for which the city is liable. Less than two weeks earlier, Cochise County employees applied chip seal to Charleston Road at the request of the city as part of a resurfacing project.
Other issues raised by Beck’s attorney David Dwyer is whether city employees complied with the specifications and standards for public works construction as required by Arizona Revised Statutes and as adopted by the city council in 2015. And whether city staff conducted a reasonable inspection of the completed project to ensure the roadway was safe.
An attorney has been provided for the city by Travelers Indemnity, with city officials kept apprised of what is happening in court, according to City Clerk Jill Adams. The city would be responsible for a deductible if found liable by the jury.
“We are not actively involved in the defense but the attorney provides detailed updates and does contact us with questions as needed,” Adams told Arizona Daily Independent. “The City Council was updated on the case in executive session recently as is our practice.”
One legal strategy put forth by the city’s attorney was an effort to designate Cochise County and the State of Arizona as non-parties at fault. Neither entity was sued by Beck, but the city argued jurors should be allowed to consider that Cochise County provided the labor and equipment for the resurfacing project under an Intergovernmental Agreement (IGA).
A designation of non-party at fault would allow the jury to reduce any city liability due to the fault of someone not sued by Beck. However, Bannon ruled that city officials have a “non-delegable duty” to maintain city roadways.
“A non-delegable duty is premised on the principle that certain duties of an employer are of such importance that he may not escape liability merely by delegating performance to another,” Bannon wrote, citing case law dating back 30 years. “The employer remains liable as if the negligence had been his own.”
Jurors will also likely hear testimony on whether Beck engaged in the “reasonable riding behavior” of a prudent bicyclist on that day in November 2018, or was negligent in any way.
But one of the biggest questions for the jury will be whether Beck’s claim is barred by ARS 33-1551, commonly known as the Recreational Use Statute. Under state law, a recreational user in certain situations accepts a degree of inherent risk and cannot bring forth a claim unless it can be shown that a public entity has engaged in “any willful, malicious or grossly negligent conduct.”