City of Tucson v. Gallagher

• Citation: 493 P.2d 1197,108 Ariz. 140
• Decision Date: 17 February 1972
• Docket Number: No. 10544--PR,10544--PR
• Parties: , 65 A.L.R.3d 597 The CITY OF TUCSON, a body politic, Appellant, v. William D. GALLAGHER and Eleanor Gallagher, husband and wife, and as parents and next friend of Janice Gallagher, Appellees.
• Court: Supreme Court of Arizona

Page 1197

493 P.2d 1197

108 Ariz. 140, 65 A.L.R.3d 597

The CITY OF TUCSON, a body politic, Appellant, v. William D. GALLAGHER and Eleanor Gallagher, husband and wife, and as parents and next friend of Janice Gallagher, Appellees.

No. 10544--PR.

Supreme Court of Arizona, In Banc.

Feb. 17, 1972.

Chandler, Tullar, Udall & Richmond, by Jack Redhair, Tucson, for appellant.

Lesher & Scruggs, by James M. Sakrison, Tucson, for appellees.

John H. Westover, Phoenix, amici curia.

HAYS, Chief Justice.

This case is before us on a petition for review of a decision of the Court of Appeals, reported at 14 Ariz.App. 385, 483 P.2d 798, affirming a judgment of the superior court entered upon a jury verdict for plaintiff in the amount of $33,000. The opinion of the Court of Appeals is vacated and the judgment of the superior court is affirmed.

Plaintiff, Janice Gallagher Bettini, a seventeen-year-old girl, was a passenger in a car driven by Johnny McMahon, who was taking her and a few friends home shortly after midnight, following a party at Davis-Monthan Air Base where he was stationed. He was being directed by one of the passengers because he was not familiar with the neighborhood. He drove south on Avenida del Sol which dead-ends at Golf Links Road, a Tucson street running east and west and protected by stop signs. The driver stopped at the stop sign and was told to turn east, which he did. Golf Links Road's right of way is approximately one hundred feet wide. Traffic does not yet require the full one-hundred-foot width, so only the south twenty-two feet is paved; the north seventy-eight feet, reserved for future expansion, is dirt and sand. However, for aesthetic and safety purposes, that portion of the street is kept smooth and free of weeds by periodic granding, so that it gives the appearance, in the dark of an unpaved road. In addition, the curbs on each side of Avenida del Sol flare out to the northern border of the right of way, and the stop sign is placed five feet north of the north curb. In the dark the whole scene tends to cause a stranger to make his turn on to the unpaved part of the street, and makes it nearly impossible to see that the paved portion of the street is some one hundred feet south of the stop sign.

Several hundred feet east of the intersection, a ditch traverses the unpaved portion of Golf Links Road. There are no warning signs or barricades. McMahon, driving along what he thought was a dirt road, saw what he thought was a dip, and slowed slightly, but before he realized that the 'dip' ahead was really an enormous washout, his car suddenly dropped into it, and plaintiff was very seriously injured. The jury's verdict was against both the driver and the city, and necessarily implies a finding that both were negligent. The evidence against the city was more than adequate. The evidence against the driver, though not quite so strong, was adequate to support the verdict. Only the city has appealed.

In any case where the driver's liability insurance is inadequate, there are various conflicts of interest. The driver did not want to suffer a judgment larger than his insurance coverage. His insurance carrier did not want to defend a case which was fraught with danger and had little chance of being won; defense counsel's fees, plus the possibility of being held for an amount exceeding its policy limits, were possible consequences. The carrier offered to pay the $10,000 policy limit for a release of the driver.

Plaintiff, on the other hand, did not want to take a covenant not to sue the driver, and proceed against only the city. That procedure would give defendant's attorney a chance to argue to the jury that the accident was caused by the driver and that the plaintiff had sued the wrong party, and a judgment for the city could result. In the words of plaintiff's counsel, 'We felt that we should have his clients (the driver) in . . ..' As a result, plaintiff's counsel entered into an agreement with counsel for the driver and his carrier, providing that plaintiff would have the option at any time to take the $10,000 and release the driver, but that until such option was exercised, the driver would remain in the case as a codefendant with the city. In return, plaintiff promised that if a judgment were obtained against the city for more than $10,000, no attempt would be made to collect anything from the driver, but if a judgment were obtained against the city for less than $10,000, the driver's insurance carrier would pay the difference. This agreement is not in the record In haec verba, but is alleged to be substantially as stated, and was revealed to the court before the trial started.

The city's principal arguments are directed against this pretrial agreement. It is contended that the contract constitutes a breach of ethics. This appeal is not concerned with the ethics of counsel. Even if it were, there is no showing that the agreement was unethical. See Damron...