Beach v. City of Phoenix, 1

• Decision Date: 09 September 1982
• Docket Number: CA-CIV,No. 1,1
• Citation: 667 P.2d 1327,137 Ariz. 1
• Parties: Anarinda BEACH, a minor, and D.L. (Jan) Beach, mother, Plaintiffs-Appellants, v. The CITY OF PHOENIX, Defendant-Appellee. 5178.
• Court: Arizona Court of Appeals

Page 1327

667 P.2d 1327

137 Ariz. 1

Anarinda BEACH, a minor, and D.L. (Jan) Beach, mother, Plaintiffs-Appellants, v. The CITY OF PHOENIX, Defendant-Appellee.

No. 1 CA-CIV 5178.

Court of Appeals of Arizona,

Division 1, Department B.

Sept. 9, 1982.

Rehearing Denied Oct. 26, 1982.

Review Granted Dec. 21, 1982.

Gorey & Delaney by Stephen Gorey, Phoenix, for plaintiffs-appellants.

Jones, Teilborg, Sanders, Haga & Parks by Edward G. Hochuli, Phoenix, for defendant-appellee.

OPINION

JACOBSON, Presiding Judge.

The sole issue raised by this appeal is whether the City is liable for injuries resulting to a pedestrian who, in avoiding an obstruction on a public sidewalk, is struck by a passing motorist.

This action was instituted by plaintiff-appellant, Anarinda Beach, against the defendant-appellee, City of Phoenix and others, seeking damages she sustained when she was struck by an automobile being driven by Linda Graulich. Plaintiff's theory of liability against the City was that by reason of the failure of the City to properly maintain its sidewalk, the plaintiff was required to walk into the street where she was struck by the Graulich automobile. The City moved for summary judgment which was granted and the plaintiff has appealed. No other defendants are parties to this appeal.

The undisputed facts are that at approximately 4 a.m. on the morning of August 20, 1978, plaintiff was walking west on a sidewalk on the north side of the 300 block of East Camelback Road in the city of Phoenix, Arizona. At that location, the sidewalk was owned and maintained by the City. A palo verde tree which once stood on property belonging to Hermann Erich H. Venjakob had fallen down, completely blocking the sidewalk.

The plaintiff, upon observing the fallen tree and concluding that she could not go over the obstacle, walked into the street. As the plaintiff was ready to step back upon the sidewalk after going around the tree, she was struck by an automobile driven by Graulich.

Although evidence was introduced concerning the length of time the tree had been lying across the sidewalk, the City concedes, for the purpose of summary judgment, that a material fact issue exists as to whether the City could be charged with constructive knowledge of the presence of the tree obstructing the sidewalk. Moreover, the City concedes that the presence of the tree across the sidewalk constituted a "defective condition" which was unreasonably dangerous.

The City defended this matter on two theories: (1) that the defective condition (the fallen tree) was open and obvious to the plaintiff and therefore no duty arose on behalf of the City to the plaintiff; and (2) that a provision of the Phoenix City Code insulates the City from liability under the facts of this case.

We start from the premise that the City owes a duty to the public to keep its streets and sidewalks reasonably safe for travel and to warn the users of any actual dangers known to the City or which could be known to it in the exercise of reasonable care. City of Phoenix v. Weedon, 71 Ariz. 259, 226 P.2d 157 (1950); Lowman v. City of Mesa, 125 Ariz. 590, 611 P.2d 943 (App.1980). However, the City is not an insurer of the safety of persons using the streets. Vegodsky v. City of Tucson, 1 Ariz.App. 102, 399 P.2d 723 (1965). In this regard, the City urges that its duty to the traveling public should be no greater than that of the landowner to an invitee, that is, "there is no liability for injuries from the dangers that are obvious, or as well known to the persons injured as to the owner or occupant." Daugherty v. Montgomery Ward, 102 Ariz. 267, 269, 428 P.2d 419, 421 (1967), quoting Foster v. A.P. Jacobs & Associates, 85 Cal.App.2d 746, 193 P.2d 971 (1948) (emphasis deleted). We agree that the City's duty is equally circumscribed. Given the plaintiff's complete knowledge of the existence of the obstruction, her sustaining injury by acting upon that knowledge and attempting to avoid the obstruction does not give rise to liability on the part of the City for her injuries. Warfield v. Shell Oil Company, 106 Ariz. 181, 472 P.2d 50 (1970).

The dissent, while recognizing the validity of the "open and obvious" limitation on the City's duty, argues that while this may place a limitation upon the risk of injury from the obstruction itself, it does not limit the City's liability for the risk of injury from vehicular traffic which the obstruction required the plaintiff to expose herself. In our opinion, this is merely a syllogism. The only defective condition alleged is the obstructive nature of the fallen tree. The rationale of the rule which denies liability where the condition of the land is open and obvious is that the potential victim will appreciate the risks presented by the defect and take steps to avoid it. Black v. State, 116 Ariz. 234, 568 P.2d 1132 (App.1977); Restatement (Second) of Torts § 343A, Comment e (1965). If the open and obvious condition of the obstruction allows the plaintiff to appreciate the risk of walking into the tree, then obviously the plaintiff must appreciate the risk of walking around the tree which means going into the street with the attendant risk that course of action presents. In short, the open and obvious nature of the condition alerts the plaintiff to all the attendant risks which are equally "open and obvious" and thereby ends any duty the City may have had to her.

Since we can affirm the trial court on the "open and obvious" theory, we need not consider the effects of the City's ordinance. However, we note a similar ordinance was held unconstitutional in City of Phoenix v. Williams, 89 Ariz. 299, 361 P.2d 651 (1961).

For the foregoing reasons, the judgment is affirmed.

HAIRE, J., concurs.

McFATE, Judge (retired), dissenting:

I respectfully dissent. The majority has in effect held that with respect to pedestrians, a municipality may, with impunity, permit an obstruction to exist on a public sidewalk indefinitely, no matter what mischief may be proximately caused thereby, so long as the obstruction itself is obviously dangerous. As this dissent will demonstrate, the law does not permit such callous lack of concern for the safety of the traveling public.

The relationship of a city to users of its public ways is not that of landowner and invitee, but rather that of a trustee for the use and benefit of the public. E. McQuillan, The Law of Municipal Corporations § 30.40, at 685 (3d ed. 1981). The public's entitlement is not a mere privilege, but a paramount right. See Beltran v. Stroud, 63 Ariz. 249, 160 P.2d 765 (1945); Thompson v. Smith, 155 Va. 367, 154 S.E. 579 (1930); 39 Am.Jur.2d Highways, Streets and Bridges § 192, at 570 (1968). As public trustee, the city is charged with a duty to keep its thoroughfares reasonably safe for travel. Lowman v. City of Mesa, 125 Ariz. 590, 611 P.2d 943 (App.1980). Despite the basic analytical difference, I concur with the majority that the duty of the City in relation to obviously defective conditions is analogous to that of a landowner to his invitee. However, an invitee on private land ordinarily has no paramount right to the use thereof. This distinction may become pertinent when determining what pedestrian conduct should reasonably be anticipated by a municipality.

The traditional rule relating to open and obvious conditions absolves a landowner from liability to invitees for harm caused by a dangerous condition of which the invitee was aware and realized the risk, or which was obvious. See Smedberg v. Simons, 129 Ariz. 375, 631 P.2d 530 (1981); Moore v. Southwestern Sash & Door Co., 71 Ariz. 418, 228 P.2d 993 (1951). However, recent modification of that rule in Arizona relieves the landowner of a duty of care only where the defective condition is not unreasonably dangerous. That a defective condition is obvious is but one factor to consider in determining whether it was unreasonably dangerous. ¹ See Smedberg v. Simons, supra; Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27 (1963). Under the facts of this case, whether the traditional or modified rule is applied, the trial court erred in granting summary judgment.

The rationale supporting the traditional rule is that no duty is owed to those injured by obviously defective conditions simply because the risk of injury is as equally obvious as the defect itself. One who proceeds in the face of such risk makes an intelligent choice to do so, and undertakes to protect himself independently of any duty of care others may owe. Restatement (Second) of Torts § 343A, Comment e (1965). The traditional reasoning would be relevant here had the plaintiff been injured by contact with the fallen tree itself, because the obstruction and its attendant physical danger were both apparent. But no such injury occurred. The plaintiff's injury was caused by a different type of risk, the exposure to which was, in turn, caused by the fallen tree. It is immaterial to this case that the tree was obvious except to the extent that it served as a causal link in the chain of circumstances which produced the injury.

It was conceded, for purposes of summary judgment, that the City negligently allowed the obstruction to exist. Hence, the City occupies the same position as would one originally responsible for placing it there. See Lowman v. City of Mesa, supra; Jensen v. Maricopa County, 22 Ariz.App. 27, 522 P.2d 1096 (1974); Delarosa v. State, 21 Ariz.App. 263, 518 P.2d 582 (1974). One who obstructs a public sidewalk should...