City of Scottsdale v. Kokaska

• Decision Date: 11 April 1972
• Docket Number: No. 1,CA-CIV,1
• Citation: 495 P.2d 1327,17 Ariz.App. 120
• Parties: CITY OF SCOTTSDALE, a municipal corporation, and Dwight J. Edwards, Appellants, v. Francene KOKASKA, a widow, Appellee. 1099.
• Court: Arizona Court of Appeals

Page 1327

495 P.2d 1327

17 Ariz.App. 120

CITY OF SCOTTSDALE, a municipal corporation, and Dwight J. Edwards, Appellants, v. Francene KOKASKA, a widow, Appellee.

No. 1 CA-CIV 1099.

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

April 11, 1972.

Rehearing Denied May 10, 1972.

Marks & Marks, by Philip J. Shea, Phoenix, for appellant City of scottsdale

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Westover, James A. Teilborg, Phoenix, for appellant Edwards.

Herbert Mallamo and Carson & Curran, by Herbert Mallamo, Phoenix, for appellee.

EUBANK, Judge.

This appeal arises out of an automobile collision that occurred between a vehicle driven by the plaintiff-appellee, Francene Kokaska and a City of Scottsdale police car driven by Officer Dwight Edwards. Both the City of Scottsdale and Officer Edwards were defendants in the trial court and are appellants here. We will refer to the plaintiff-appellee as the 'Plaintiff', to the defendant City of Scottsdale as the 'City', and to the defendant police officer Edwards as 'Edwards'.

The accident occurred in the early morning hours of February 23, 1964, on Scottsdale Road approximately one-half mile Defendant Edwards was employed as a patrolman for the City of Scottsdale and was working the late evening shift on February 23rd. Prior to going on patrol, and for several days previously, Edwards was aware that the brakes on his patrol car were in poor condition. Edwards had advised his immediate supervisor of this fact on the night of the accident, and had even refused to drive the vehicle. His supervisor had ordered him to do so anyway, which he did. The particular defective conditions of the brakes were that they had to be depressed almost to the floorboard before taking hold, and that they would fade and grab.

north of the intersection of Scottsdale Road and Vista Drive. Scottsdale Road is a four-lane highway at this point consisting of two southbound and two northbound lanes separated only by double painted lines. Just prior to the accident the Plaintiff had been at Joe Hunt's Restaurant and had left there to return to her home. She traveled north on Scottsdale Road at a speed of approximately 35 m.p.h.

Edwards went out on patrol and at about 1:15 A.M., on February 23rd he was traveling south on Scottsdale Road in the 200 block. At this point he observed a vehicle traveling north on Scottsdale Road at an excessive rate of speed. Edwards turned his car around and started to chase the speeder. There was conflicting testimony as to whether Edwards was using the red lights and siren during the ensuing chase. He had to stop at the intersection of Camelback Road and Scottsdale Road because of the traffic. At this point the speeder was moving steadily away from him, heading north on Scottsdale Road. Edwards continued the chase at an estimated speed of 60 to 65 m.p.h. with the speeder continuing to outdistance him. As he approached the 5300 block of Scottsdale Road, Edwards saw the Plaintiff's vehicle in the center lane move to the outside, northbound lane, revealing a Vespa motor scooter northbound in the center lane. He also observed two other vehicles in close proximity approaching in the two southbound lanes of Scottsdale Road and then he observed that the motor scooter had stopped in the center lane to make a left-hand turn. At this point Edwards applied the brakes and swerved left across the centerline in order to avoid colliding with the motor scooter. His patrol car sideswiped the left side of a Mercedes driven by Leonard Burkland which was heading south in the center lane. The rear end of the patrol car fishtailed to the right and then back to the left, continuing into the left rear side of the Plaintiff's vehicle. Plaintiff was injured as a result of the collision. The investigating officer reported that the night was dark, the weather was clear, the road was level, and the surface condition of the road was dry.

The operator of the motor scooter, Jan Sturgeon, testified by deposition that she did not hear a siren until after Edwards' patrol car had gone around her motor scooter. The driver of the Mercedes vehicle, Leonard Burkland, also testified by deposition, that he did not see the patrol car until it swung into his southbound lane and at that point the flashing red lights came on. A passenger in Mr. Burkland's auto, his wife, also testified by deposition that she had changed the radio station on the car radio and sat back and saw the defendant's patrol car in their lane with red lights flashing. Neither of them heard a siren. The Plaintiff testified that she did not see flashing red lights or hear a siren before impact. Edwards and his partner testified that the red light was flashing and the siren was operating during the chase, and the City contends that this patrol car was an authorized emergency vehicle as defined by A.R.S. § 28--624.

The cause was tried to a jury which returned a verdict for the Plaintiff against the defendants in the amount of $90,000. This was later remitted to $70,000 by the trial judge. Both defendant Edwards and the City appeal from the judgment.

FORESEEABILITY INSTRUCTIONS

Edwards requested two instructions relating to 'foreseeability' both of which are substantially cited in full and approved by the Supreme Court in Tucker v. Collar, 79 Ariz. 141, 285 P.2d 178 (1955). The trial court refused both instructions and Edwards objected, stating, in part:

'. . . These instructions set forth a test of Foreseeability as the test of negligence, and I do not believe that the instruction to be given by Your Honor upon negligence gives any test as to foreseeability, and since one of the crucial issues in this case is whether or not the defendant Edwards should have foreseen that an unlighted motor scooter would be stopped in the center lane of the highway, the question of foreseeability is a crucial question and the jury should be instructed thereon. . . .' (Emphasis added.)

The Plaintiff counters this by arguing that Edwards failed to raise foreseeability as an issue in the 'pre-trial statement' filed pursuant to Rule XVI(c), Uniform Rules of Practice, 17 A.R.S. by defining Plaintiff's issues as 'negligence, damages, if any and proximate cause;' and, further argues, in effect, that this case is not a 'forseeability' type case requiring such instructions for the reason that it is bottomed on Edwards' violation of specific statutes and involves a question of negligence Per se or negligence as a matter of law. The first argument is without substance because the question Is preserved by the pre-trial statement; the second argument is valid, in part.

Since negligence, as it has developed as a separate tort, is based upon the concept of fault, neither Edwards nor the City, through him, is legally responsible merely because his conduct injured the Plaintiff. 12 Am.Jur.2d Negligence, § 4 (1971 ed.). In order for Actionable negligence to exist three elements must be satisfied. They are:

1. There must exist a duty on the part of the defendant to protect the plaintiff from the injury of which he complains;

2. The defendant must fail to perform that duty; and

3. An jury to the plaintiff must proximately result from such failure.

Shafer v. Monte Mansfield Motors, 91 Ariz. 331, 372 P.2d 333 (1962); Hersey v. Salt River Valley Water Users' Ass'n, 10 Ariz.App. 321, 458 P.2d 525 (1969). A fourth element is always understood to consist of the proof of an actual loss or damages. The first element is the Duty issue; the second is the Negligence issue; the third element is the causal relation or Proximate cause issue; while the fourth element is the Damage issue. To which issue is the question of foreseeability directed? Edwards says that it is the test for the second issue--Negligence. However, our Supreme Court has said that it is an element of the first issue--Duty. For instance in Mountain States Telephone & Telegraph Co. v. Kelton, 79 Ariz. 126, 285 P.2d 168 (1955), the court said that the duty the defendants owed plaintiff included the duty to take reasonable precautions to prevent injuring the plaintiff and that the reasonable precautions must be measured by the risk of anticipated harm (foreseeable harm). See also, Bryan v. Southern Pac. Co., 79 Ariz. 253, 286 P.2d 761 (1955); Matsumato v. Arizona Sand & Rock Co., 80 Ariz. 232, 295 P.2d 850 (1956). In Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652 (1968), our Supreme Court analyzes the foreseeability aspect of duty as follows:

'(6) To put it another way, to constitute actionable negligence the defendant must owe a duty to the plaintiff, the breach of which results proximately in plaintiff's injury. Crouse v. Wilbur-Ellis Co., 77 Ariz. 359, 272 P.2d 352. So, the question which must be answered is, 'What duty did Ortiz owe as the supervising instructor, the breach of which resulted in Morris' injury?' To hold that In Morris the court held as a matter of law that the circumstances of injury were not foreseeable and consequently no duty was owed plaintiff. See also, West v. Cruz, 75 Ariz. 13, 251 P.2d 311 (1952).

Ortiz had to anticipate Gillmor's act and somehow circumvent it is to say that it is the responsibility of a school teacher to anticipate the myriad of unexpected acts which occur daily in and about schools and school premises, the penalty for failure of which would be financial responsibility in negligence. We do not think that either the teacher or the district should be subject to such harassment nor is there an invocable legal doctrine or principle which can lead to such an absurd result.' (103 Ariz. at 121, 437 P.2d at 654.)

'Duty' is defined by Professor Prosser, in his work on Torts, 2nd edition (1955), page 166, § 36, as one's obligation recognized by the law to conform to a particular standard of conduct toward another. In 1 Restatement of Torts 2nd, p. 7, § 4 (1965) 'duty' is used,

'. . . to denote the fact that the actor is required to...