LEE v. STATE

No. 1 CA-CV 09-0657.

242 P.3d 175 (2010)

James L. LEE, individually and as the surviving husband of Teresa C. Lee, deceased; Kyung Hee Kim and Tae Gun Kim, children of Hyeon Bai Kim and Kyung Nim Bea Kim, deceased, Plaintiffs/Appellants, v. STATE of Arizona, a government entity, Defendant/Appellee.

Court of Appeals of Arizona, Division 1, Department D.

November 9, 2010.


Attorney(s) appearing for the Case

Law Office of Glynn W. Gilcrease, Jr., P.C. By Glynn W. Gilcrease, Jr. , Tempe, and Law Offices of David L. Abney By David L. Abney , Phoenix, Attorneys for Plaintiffs/Appellants.

Terry Goddard , Arizona Attorney General By George Crough , Daniel P. Schaack , Assistant Attorney Generals, Phoenix, Attorneys for Defendant/Appellee.

Holloway Odegard Forrest & Kelly, P.C. By Charles M. Callahan , Phoenix, Attorneys for Amicus Curiae Arizona Association of Defense Counsel.


OPINION

WINTHROP, Presiding Judge.

¶ 1 When a governmental entity asserts an affirmative defense of non-compliance with Arizona's notice of claim statute, and a genuine issue of material fact exists concerning compliance, who resolves that factual question, the trial judge or a timely requested jury? We hold that, under these circumstances, the resolution of the factual question is reserved for the jury. Accordingly, we vacate the trial court's order...

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