City of Glendale v. Bradshaw

• Decision Date: 01 February 1972
• Docket Number: CA-CIV
• Citation: 493 P.2d 515,16 Ariz.App. 348
• Parties: CITY OF GLENDALE, a political subdivision of the State of Arizona, Appellant and Cross-Appellee, v. Glen BRADSHAW, By and Through Corena Bradshaw, Guardian of the Person and of the Estate of Glen Bradshaw, an Incompetent, and Corena Bradshaw, his wife, Appellees and Cross-Appellants. No 11503.
• Court: Arizona Court of Appeals

Page 515

493 P.2d 515

16 Ariz.App. 348

CITY OF GLENDALE, a political subdivision of the State of Arizona, Appellant and Cross-Appellee, v. Glen BRADSHAW, By and Through Corena Bradshaw, Guardian of the Person and of the Estate of Glen Bradshaw, an Incompetent, and Corena Bradshaw, his wife, Appellees and Cross-Appellants.

No 1 CA-CIV 1503.

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

Feb. 1, 1972.

Rehearing Denied March 6, 1972. See 494 P.2d 383.

Review Granted April 25, 1972.

Jack M. Anderson, and John S. Schaper, Phoenix, for appellees and cross-appellee, City of Glendale.

Divelbiss & Gage, by G. David Gage, Phoenix, for appellees and cross-appellants.

J. LaMar Shelley, Mesa, and Snell & Wilmer, by Mark Wilmer, Phoenix, for the amicus curiae, League of Arizona Cities and Towns.

STEVENS, Presiding Judge.

This is an appeal from a judgment entered in favor of the appellee, Glen Bradshaw (herein referred to as the plaintiff), in a personal injury action arising out of a one-car accident that occurred at the intersection of Royal Palm Road and Fifty-fifth Avenue, within the Glendale city limits, on the morning of February 23, 1969. Mrs. Bradshaw filed a cross-appeal in relation to the denial of her claim for loss of consortium.

The car was being driven in a northerly direction on Fifty-fifty Avenue by Veryl Evelyn Fandrey, one of the defendants in this proceeding, which it struck a mound of dirt located just north of the end of the pavement on Fifty-fifth Avenue and vaulted into the air before finally coming to rest in an adjoining field with the rear wheels of the automobile 66 feet north of the top of the mound. Fifty-fifth Avenue ended at Royal Palm Road and there was no warning sign indicating that the traffic must change direction or that Fifty-fifth Avenue ended at this point.

The plaintiff was a passenger in this automobile and sustained serious injuries to his head which required extensive surgical procedures. These injuries subsequently resulted in the loss of his left eye, severe brain damage and permanent disability.

A suit was filed against Mrs. Fandrey, alleging that she was negligent in her operation of the vehicle which was involved in the accident, and against the City of Glendale (herein referred to as the City), alleging that it was negligent in failing to properly maintain a warning sign on Fifty-fifth Avenue at a point a sufficient distance south of where the accident occurred to prevent such occurrences. After a two-week trial, the jury returned a verdict in favor of the plaintiff which was against both defendants in the amount of two hundred and eighty thousand dollars ($280,000.00), and a judgment was subsequently entered thereon. The City has appealed from this judgment and from the order of the trial court denying its Motion for New Trial and Motion for Judgment n.o.v. ¹

The City has presented the following issues for our consideration on appeal: First, a series of questions which relate to the liability of the City under the facts and evidence in the case at bar, and second, a question as to the propriety of the determination and rulings of the trial court with regard to the Bradshaw-fandrey covenant which limited the amount of the latter's liability. During the initial phases of trial, it had become apparent that an agreement had been reached between the plaintiff's counsel and counsel for Mrs. Fandrey under the terms of which her liability was limited to fifty thousand dollars ($50,000.00). Counsel for the City strongly objected to this arrangement throughout the course of the proceedings and has raised similar questions on appeal.

We will consider these questions in the order presented by the appellant.

CITY'S LIABILITY

It was first argued that no evidence was presented which could justify the submission of the issue of the City's liability to the jury. The City's position was that, as a matter of law, it had not been shown that there was a duty on the City to maintain a warning sign on Fifty-fifth Avenue and that, even if the negligence of City was assumed, under the uncontradicted facts and evidence of this case such negligence was not a proximate cause of the plaintiff's injuries. Based upon the foregoing grounds, it is the City's contention that the trial court committed reversible error in failing to grant its Motion for Directed Verdict.

Our review of the pertinent case law with regard to these initial issues raised by the City indicates that the duty of a municipality to properly maintain its streets for public use has been previously established in a manner which is inconsistent with the appellant's argument on appeal.

'In cases of this nature, the State, Like a municipal corporation, is not an insurer of the safety of streets and highways under its control, But does have a duty to maintain and repair them in a manner which will keep them reasonably safe for ordinary travel. (citations omitted) This includes a duty to maintain and repair traffic control signals in a manner which will keep them reasonably safe.' Arizona State Highway Department v. Bechtold, 105 Ariz. 125, 129, 460 P.2d 179, 183 (1969). (emphasis added)

The Bechtold case was based upon evidence of an improper repair of a traffic control signal which evidence warranted the finding that an employee of the Highway Department was negligent and that such negligence was the proximate cause of the accident in question.

In State v. Watson, 7 Ariz.App. 81, 436 P.2d 175 (1967), the Court held that the State is liable for injuries caused by its failure to properly post warning signs as to a narrow bridge on the highway. The State had unsuccessfully argued that there was an absence of a causal relationship between the failure to give warning as to the bridge and the accident which resulted in the plaintiff's injuries. It was contended that the plaintiff's negligence (odor of alcohol on his breath when he was removed from the car) was the superseding cause of the accident and that the Court should rule as a matter of law that any negligence of the State could not have been a cause of the plaintiff's injuries.

And finally, in Rodgers v. Ray. 10 Ariz.App. 119, 457 P.2d 281 (1969), while the Court saw no possibility of liability for the failure of the defendant county to install a specific type of traffic control device, in that case a stop sign, it was held that there is a duty to warn of dangerous conditions on the public roads, which are not obvious, by the posting of a proper warning sign.

The Court is of the opinion that these authorities when viewed in light of the circumstances in the instant case establish the duty of the City, as a matter of law, to maintain and repair traffic control devices in a manner which will keep the streets and highways safe for ordinary use.

The City has made the additional argument that its negligence, even if established, does not expose it to liability because such negligence was not a proximate cause of the plaintiff's injuries. We disagree.

'Proximate cause is most simply defined as that cause without which the accident would not have happened. it is a question of fact for the jury if there is substantial evidence from which it may reasonably be deduced that the negligence shown was the proximate cause of the injury complained of. Inspiration Consol. Copper Co. v. Conwell, 21 Ariz. 480, 190 P. 88 (1920). The negligence complained of need not be the sole cause, but need only be a proximate cause to support a verdict for the plaintiff. Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201 (1949).' Arizona State Highway Department v. Bechtold, supra, 105 Ariz. at 129, 460 P.2d at 183.

As far as proof of proximate cause is concerned:

'All that is required in negligence cases is for the plaintiff to present probable facts from which negligence and causal relations may be reasonably inferred.' E. L. Jones Construction Co. v. Noland, 105 Ariz. 446, 453, 466 P.2d 740, 747 (1970).

On the basis of these cases, and because we view the evidence on the issue of negligence in a light most favorable to the party who prevails in the trial, Shell Oil Company v. Collar, 99 Ariz. 154, 407 P.2d 380 (1965), it is the decision of this Court that the trier of fact was not in error when it determined that there was sufficient evidence from which negligence and a causal relation which led to the plaintiff's injuries could be inferred, i.e., that the negligence of the City was at least one of the proximate causes of the plaintiff's injuries.

A final argument made by the City in an attempt to limit its liability cites City of Phoenix v. Lopez, 77 Ariz. 146, 268 P.2d 323 (1954), as authority for the proposition that a municipality's duty is limited to the exercise of ordinary and reasonable care to maintain its streets in a safe condition for Lawful and ordinary use by the public. It is the City's position that the vehicle in this case was not being operated in a lawful manner for the follow reasons: (1) The driver of the car, Mrs. Fandrey, was traveling in excess of the lawful speed of twenty-five miles per hour, and (2) The evidence presented indicated that Mrs. Fandrey had consumed a substantial amount of liquor during the evening immediately prior to the accident. Assuming Arguendo that these statements of fact are adequately supported by the record, we are unable to agree with the proposition of law advanced or the basis thereof to the effect that a municipality owes no duty to those who use its streets in an unlawful manner.

The appellant relies upon the Lopez decision and the following language taken therefrom:

'* * * Must the city, under the duty attributable to an ordinarily prudent person, construct and maintain its streets for unlawful use? In the Mayfield case, supra, it is pointed out that the city's duty extends only to those 'exercising ordinary care and caution'. Persons making unlawful use of the streets are not in this category.' Supra at 150, 268 P.2d at...