Brown By and Through Brown v. Arizona Public Service Co.

• Decision Date: 01 March 1990
• Docket Number: No. 1,CA-CV,1
• Citation: 164 Ariz. 4,790 P.2d 290
• Parties: Charlie BROWN, a minor, By and Through his Guardian Ad Litem, Nancy BROWN; Nancy Brown and Ernie Brown, wife and husband, Plaintiffs-Appellants, v. ARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation, Defendant-Appellee. 88-541.
• Court: Arizona Court of Appeals

Page 290

790 P.2d 290

164 Ariz. 4

Charlie BROWN, a minor, By and Through his Guardian Ad Litem, Nancy BROWN; Nancy Brown and Ernie Brown, wife and husband, Plaintiffs-Appellants, v. ARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation, Defendant-Appellee.

No. 1 CA-CV 88-541.

Court of Appeals of Arizona,

Division 1, Department C.

March 1, 1990.

As Corrected May 3, 1990.

Rake, Copple, Downey & Black, P.C. by Richard A. Black, Patrick Rake, David L. O'Daniel, Phoenix, for plaintiffs-appellants.

Snell & Wilmer by Robert W. Haskin, Jr., Lawrence F. Winthrop, Eileen J. Moore, Phoenix, for defendant-appellee.

GERBER, Judge.

Charlie Brown and his parents appeal from a judgment for Arizona Public Service Company (APS) on the Browns' "attractive nuisance" claim. They allege that Charlie suffered an electric shock and severe injury from an APS high-tension electric pole that was easy to climb. We conclude that in granting APS's motion for summary judgment, the trial court relied on an obsolete formulation of the doctrine of attractive nuisance. The dispositive question on appeal is whether the attractive nuisance doctrine includes a requirement that the injured child be "attracted" by the object that caused his injury.

FACTS

At the time of his injury, Charlie Brown was a 16-year-old high school student. On February 10, 1987, he was visiting at the home of a friend in west Sedona. He had visited there many times before. On this occasion he and his friend were planning a Civil War reenactment.

While outside, Charlie and his friend heard a cat meowing as if in trouble. They spotted the cat at the top of a utility pole in a neighbor's yard. The utility pole was a 35 foot transformer pole owned, operated and maintained by APS with a single phase 7200 volt primary conductor. A secondary conduit was attached to the pole along with cable television facilities and telephone equipment. Also attached to the pole was a vertical pipe held by iron supports approximately six inches out from the wooden pole.

Charlie's friend attempted to climb the pole first but left to change his shoes for Q. What was it that attracted you to this particular pole? In other words, why did you climb this pole as opposed to the next pole down or a pole three blocks away?

[164 Ariz. 5] better traction. Before his friend came back, Charlie decided that he could get the cat down. Charlie testified in his deposition:

A. For one thing, the cat was on it, and for another, I never really seen a pole so easy to climb.

Q. If it had not been for the cat, would you have still climbed that pole on the date of the accident?

A. No.

....

Q. The fact that the pole had a metal pipe running along side of it that made it easy to climb had nothing to do with what attracted you to that pole; isn't that true?

A. No, it didn't attract me. It was just the cat.

Q. The metal pole with the pipe simply provided an easy means for you to climb up to the cat; isn't that true?

A. Yes.

In a later affidavit, Charlie stated:

5. I decided I wanted to climb the pole because I thought it would be fun to get up and look around and I have always liked to climb things. I thought I could have fun by climbing the pole and at the same time do a good deed by getting the cat down.

....

8. I would not have attempted to climb the pole if it was difficult to climb because it was not my cat and I did not know whose cat it was. It was so easy to climb the pole that I wanted to climb it before Brett [Charlie's friend] got back and did it himself.

9. It appeared to me that the pipe was set out from the pole to make it easy to climb and there was no sign or fence or anything to warn me that there was any danger to me if I climb the pole....

Charlie climbed the pole. When he got to the top bracket that held the iron pipe to the wooden pole, he stood on it for a time with his back to the pole to admire the scenery. From that position, the cat was still above his head. With his hands and chest against the pole, he started after the cat. At that point he received an electric shock and fell, sustaining injuries.

PROCEDURE IN THE TRIAL COURT

APS filed a motion for summary judgment arguing that as a matter of law under Salt River Valley Water Users' Association v. Compton, 39 Ariz. 491, 8 P.2d 249 (1932), opinion on rehearing, 40 Ariz. 282, 11 P.2d 839 (1932), the attractive nuisance doctrine afforded no basis for recovery. APS reasoned:

Plaintiffs' complaint unequivocally establishes that it was the cat, rather than the pole, that attracted him. Furthermore, Plaintiff proved by his own positive testimony that it was not the pole, but the cat on top of the pole, which was the temptation to which he yielded, and that the pole was merely a convenient means of access to the real temptation.

(Emphasis in original.)

In their response to the motion for summary judgment, the Browns accepted Compton as the governing authority and argued that the motion should be denied because of a material dispute over whether rescuing the cat was Charlie's only purpose in climbing the pole. The trial court granted APS's motion for summary judgment without specifying reasons.

THE PARTIES' CONTENTIONS ON APPEAL

The Browns contend the judgment must be reversed because MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958), which neither side argued to the trial court, disapproved Compton to the extent Compton required attraction onto the defendant's property by the very instrumentality that constituted the attractive nuisance. The Browns also argue that, even assuming the attractive nuisance doctrine requires that Charlie be attracted by the "nuisance" itself, i.e. the pole, a triable issue of fact existed concerning whether the cat or the pole, or both, tempted him to climb. The Browns argue that the judgment should in any event be reversed because the Arizona Supreme Court adopted Restatement (Second) of Torts § 337 (1965) in Webster v. Culbertson, 158 Ariz. 159, 761 P.2d 1063 (1988) after the trial court's judgment. The Browns argue they should be given the opportunity to proceed against APS on the new theory of liability that Webster established.

APS contends that the Browns are precluded from arguing for the first time on appeal that Charlie need not have been attracted by the nuisance. APS acknowledges that MacNeil held that the attractive nuisance doctrine did not require proof that the dangerous instrumentality attracted the child onto the property. APS contends, however, that even under MacNeil the artificial condition must still have been what ultimately lured the child to the danger that caused his injury. APS additionally urges that the record establishes no triable factual issue concerning what induced Charlie to climb the pole. Finally, it argues that Webster v. Culbertson does not justify reversing the judgment to allow the Browns to raise a theory of liability they failed to assert before.

EFFECT OF BOTH SIDES' NEGLECT TO BRING MacNEIL V. PERKINS TO THE TRIAL COURT'S ATTENTION

Generally, a party may not advance a new theory on appeal to secure a reversal of the trial court's judgment. See Jennings v. Roberts Scott & Co., Inc. 113 Ariz. 57, 546 P.2d 343 (1976); Contempo Construction Co. v. Mountain States Telephone & Telegraph Co., 153 Ariz. 279, 736 P.2d 13 (App.1987); Dillon-Malik, Inc. v. Wactor, 151 Ariz. 452, 728 P.2d 671 (App.1986). However, this rule is procedural, not jurisdictional, and exists only for orderly court administration. Hawkins v. Allstate Insurance Co., 152 Ariz. 490, 733 P.2d 1073 (1987) cert. denied 484 U.S. 874, 108 S.Ct 212, 98 L.Ed.2d 177 (1987). As this court stated in Stokes v. Stokes, 143 Ariz. 590, 694 P.2d 1204 (App.1984):

Normally, an appealing party may not urge as grounds for reversal a theory which he failed to present below. In re Geis' Estate, 132 Ariz. 350, 645 P.2d 1264 (App.1982).

However, this rule is procedural and not jurisdictional. South Tucson v. Board of Supervisors, 52 Ariz. 575, 84 P.2d 581 (1938). The rule is for the benefit of the party against whom the defense is newly asserted on appeal and is intended to prevent surprise. Int'l Life Ins. Co. v. Sorteberg, 70 Ariz. 92, 216 P.2d 702 (1950). "The theory [is] that he doesn't have the same opportunity to defend against it as he would have had it been raised in the trial court." 70 Ariz. at 98, 216 P.2d at 705. Where, however, the record contains facts determinative of an issue which will resolve the action, that issue may be reviewed on appeal, even if it was never formally raised in the trial court. Rubens v. Costello, 75 Ariz. 5, 251 P.2d 306 (1952). Other exceptions to the general rule include situations where the matter involved is one which affects the general public interest, or where a legal principle, although not suggested by either party, should be adopted on appeal to expedite the enforcement of a right, or redress a wrong. Id. The exceptions to the general rule operate only where the facts of a particular case so warrant and the question is one of substantive law presenting no dispute as to the facts. Id.

Id. 143 Ariz. at 592, 694 P.2d at 1206. See also Washington National Insurance Co. v. Employment Security Commission, 61 Ariz. 112, 144 P.2d 688 (1944); Mead v. Nacey, 23 Ariz.App. 121, 531 P.2d 166 (1975).

Under the unique circumstances of this case, the issue the Browns now raise concerning the doctrine of attractive nuisance should be considered on appeal because to hold otherwise would defeat rather than promote the "attainment of justice." Hawkins, 152 Ariz. at 503, 733 P.2d at 1083. Not one but both parties failed to argue the current law to the trial court. Furthermore, it was APS, not the Browns, that first defined the law claimed applicable to this case by exclusive reference to Compton. APS evidently did so without bringing to the trial court's attention the fact that Compton had been overruled on at least one point.

We therefore decline to follow the policy that limits...