Black v. State
| Decision Date | 27 July 1977 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 116 Ariz. 234,568 P.2d 1132 |
| Parties | Grace BLACK, a single woman, Appellant, v. The STATE of Arizona, Cochise County, a body politic and political subdivision of the State of Arizona, and John F. Glass, V. L. Thompson, A. J. Gilbert, Jr., as members of the Cochise County Board of Supervisors, James Wilson, Sheriff of Cochise County, the City of Bisbee, Mike Denny, Ed Holly and Oake Walker, Appellees. 2415. |
| Court | Arizona Court of Appeals |
Bruce E. Babbitt, Atty. Gen., Jones, Teilborg, Sanders, Haga & Parks by Robert J. Bruno, Sp. Asst. Atty. Gen., Phoenix, for appellee the State of Arizona.
Lesher, Kimble & Rucker, P. C. by William Kimble, Tucson, for appellees Cochise County and City of Bisbee.
Appellant, a passenger in a van operated by Francisco Romero, was injured when the vehicle in which she was riding skidded into a stationary automobile on U. S. Highway 80 between the Mule Pass summit and the Bisbee traffic interchange. The accident occurred after dark. It was snowing and the highway was slick. She sued Romero; the operator of the stationary vehicle, Ramon Robles; the State of Arizona, County of Cochise, City of Bisbee, and four law enforcement officers employed by the various governmental units, who had been trying to help Robles immediately before the accident.
At trial, after plaintiff had rested, the court directed a verdict in favor of Robles, Cochise County, Bisbee and the law enforcement officers, and submitted to the jury the case against Romero, and against the State of Arizona on the issue of negligence in maintenance of the highway. The jury returned a verdict against Romero but in favor of the state.
Four questions are raised on appeal from the judgment in favor of the governmental entities and officers. 1 The first deals with an evidentiary ruling and the last two with jury instructions; we find no error in these matters for reasons hereinafter set forth. The remaining question as to the propriety of the directed verdicts requires more detailed analysis.
The facts viewed most favorably to the party against whom the verdicts were directed are as follows. Robles and his family were proceeding toward Tucson from Douglas when his car lost traction and came to a stop on the grade leading up toward Mule Pass. The first law enforcement officer to come to his aid was Ed Holly of the Bisbee Police Department, who parked his police car behind the Robles vehicle. Next on the scene was an Arizona Highway Patrol car operated by Hector Berrellez, an officer of the Department of Public Safety, who parked behind Holly. Shortly thereafter two Cochise County deputy sheriffs, Michael Denney and Oakie Walker, arrived and parked at the end of the line, which by then also included another private vehicle. As each of them arrived, the officers left their vehicles and approached the Robles car, leaving on the flashing emergency lights mounted on top of each patrol car.
Approximately 10 minutes after Holly had reached the scene, the Romero vehicle coming from Tucson toward Douglas started down the grade. As Romero rounded a bend 550 feet from the Robles car, he saw headlights shining across the highway and the flashing emergency lights on the patrol cars. He thought there was an accident ahead and that the lane in which he was traveling might be obstructed. He tapped his brake pedal once, then a second time. He felt the van start to slide to the left across the highway toward the lights, slammed on his brakes and, after they locked, the vehicle continued into the Robles car and then spun back across the highway, coming to rest against the mountainside.
Appellant's contention that the officers were negligent was based on three theories: (1) they should have removed the Robles vehicle from the highway before the accident; (2) they should not have created the confusion resulting from three sets of flashing emergency lights; (3) they should have acted to provide advance warning of the situation to drivers like Romero approaching from the summit.
As to appellant's first two theories, we agree with the trial judge that no reasonable man could find negligence in the officers' failure to have removed the Robles car from the highway before the accident, or in using the emergency lights mounted on the top of each vehicle as it in turn arrived at the scene. The Robles car was stopped either partially on or adjacent to the shoulder, leaving unobstructed more than half of the 40-foot paved highway. Equipment for clearing the roadway of snow and ice, and sanding it if necessary, had been summoned and could be expected to arrive shortly. Attempting to move the car under the circumstances presented at least as many hazards as allowing it to remain where it had stopped. The most apparent danger was that the driver of another vehicle proceeding in the same direction would come unaware upon the rear of the growing line of vehicles headed by the Robles car, and we are unable to see how reasonable men could find it negligent for each officer to have used his flashing emergency lights as he took his place at the back of the line.
As to the third theory, we need not decide whether illumination reasonably necessary for the safety of traffic proceeding in one direction may create a hazard requiring advance warning to persons proceeding in another. It is not enough that the officers may have been negligent unless the evidence would support the conclusion that any such negligence was the proximate cause of appellant's injuries. Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652 (1968). On that issue it is necessary to examine Romero's version of the events leading to the accident:
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