On a clear night in September 2009, Ray Sayer and a friend pulled out of a Payson convenience store on their Harley-Davidson motorcycles and made their way toward Star Valley.
As they left town, the highway grew dark, lit only by the headlights of approaching vehicles.
As the men neared the turnoff to Chaparral Pines, they saw several vehicles stopped in the westbound shoulder, their emergency lights flashing.
Sayer and his motorcycle went airborne before crashing to the asphalt.
Sayer had struck the body of an elk, which had been hit by another motorist just a few minutes earlier.
Badly injured, Sayer was airlifted to a Valley hospital.
After several surgeries, including a hip replacement, shoulder work, rehabilitation and speech therapy —Sayer had racked up more than $2 million in medical bills.
Sayer and his wife, Kori Sayer, sued the state several months ago, saying it had failed to make Highway 260, specifically at milepost 254, reasonably safe for motorists.
The trial lasted 10 days, but it took the jury less than an hour to side with the state — finding it was not at fault.
Adding insult to injury, a judge ordered Sayer to pay the nearly $5,000 jury bill.
With dozens of motorists striking elk in the Rim Country each year, the case sets a clear precedence: The state isn’t responsible for stopping animals from crossing the highway.
At trial, both sides called a bevy of witnesses, including wildlife and traffic engineer experts, each with its own theory on animal migration and appropriate highway design.
The state showed it had taken steps to improve highway safety, especially on Highway 260 where it installed 11 wildlife underpasses and elk fencing on 17 miles of roadway. The work started in the 1990s after Arizona officials said they realized more vehicles were using the highways and more elk were living adjacent to those highways.
Sayer’s attorneys said it didn’t matter what the state had done down the road: At milepost 258, it hadn’t done enough.
“What the state did on other highways regarding its known ‘elk/vehicle problem’ does not tend to establish whether SR-260 near Mr. Sayer’s collision was, or was not, reasonably safe,” Sayer’s attorney wrote.
The road was clearly not safe at the time of the accident, his attorneys argued.
Sayer’s lawyers had witnesses testify that the state should have installed elk-proof fencing on both sides of the roadway and added lighting.
That section of roadway twists and turns as it drops into Star Valley, without a center lane or streetlights except near the entrances to several communities.
At about 10:40 p.m., on the night of the wreck, Daniel Utz struck an elk with his green Ford Explorer in the westbound lane. Utz, and several motorists, including an Arizona Game and Fish Department employee, stopped in the westbound shoulder and turned on their emergency lights. A security guard from Chaparral Pines stopped in the center lane, facing eastbound traffic, and turned on his hazard lights, according to court documents.
During the next 10 minutes, several waves of traffic passed without incident. Then Sayer and his friend approached on their Harleys.
The state claimed Sayer was negligent and should have slowed down.
Sayer’s defense team said the state was negligent and it should have done more to improve the safety of the roadway.
“Plaintiffs allege that the state was negligent because it either knew or should have known that elk frequently cross the roadway at or near milepost 254 and failed to institute measures that they allege would have reduced the number of elk/vehicle collisions at this location,” according to court records.
Before trial, the couple turned down the state’s $200,000 settlement offer.
The state’s case
The state’s defense was three-fold.
First, it said it has tried to reduce elk collisions, despite the steep price tag.
The state argued that it’s making major improvements to reduce the risk of elk collisions on Interstate 17, Interstate 40 and State Route 64, all of which present a greater risk than milepost 254.
“Due to the scope of the problem, and remediation costs in the hundreds of millions of dollars, it is not feasible for the state to immediately remediate all potential locations,” the state defense team wrote.
And although it would be nice to think fencing the entire highway would make it safer, the state’s defense team said it is just not so.
“State research demonstrates that the answer is not to fence elk off the roadway. State studies have shown that elk will go around or through roadside fencing unless it is part of an interconnected system of fencing and underpasses that will permit these large and determined animals to cross transportation corridors.”
The state also argued that Highway 260 meets applicable standards and finally, Sayer’s negligence caused of the wreck.
“The plaintiff’s focus on milepost 253.8 is myopic, because it fails to consider that the state has an obligation to make all state highways in elk country locations reasonable safe …” said Fred Zeder, assistant attorney general in court documents.