Clark v. New Magma Irrigation & Drainage District

• Decision Date: 24 June 2004
• Docket Number: No. 2CA-CV 2003-0026.,2CA-CV 2003-0026.
• Citation: 92 P.3d 876,208 Ariz. 246
• Parties: Scott CLARK, surviving parent and personal representative of Justin Christopher Clark, deceased, on behalf of himself and Sandy Clark, surviving parent of the deceased, and Chealsea Clark, Sally Ann Clark, Emily Clark, and Ethan Clark, their children, Plaintiffs/Appellants, v. NEW MAGMA IRRIGATION & DRAINAGE DISTRICT, a municipal corporation and political subdivision of the State of Arizona, Defendant/Appellee.
• Court: Arizona Court of Appeals

92 P.3d 876

208 Ariz. 246

Scott CLARK, surviving parent and personal representative of Justin Christopher Clark, deceased, on behalf of himself and Sandy Clark, surviving parent of the deceased, and Chealsea Clark, Sally Ann Clark, Emily Clark, and Ethan Clark, their children, Plaintiffs/Appellants, v. NEW MAGMA IRRIGATION & DRAINAGE DISTRICT, a municipal corporation and political subdivision of the State of Arizona, Defendant/Appellee.

No. 2CA-CV 2003-0026.

Court of Appeals of Arizona, Division 2, Department A.

June 24, 2004.

LaVelle & LaVelle, PLC, By Michael J. LaVelle and Matthew K. LaVelle, Phoenix, for Plaintiffs/Appellants.

Jennings, Haug & Cunningham, LLP, By Jorge Franco, Jr. and William F. Begley, Phoenix, for Defendant/Appellee.

OPINION

FLOREZ, J.

¶ 1 Appellant Scott Clark sued Paul and Rosanne Smithling and New Magma Irrigation & Drainage District for the wrongful death of his fourteen-year-old son, Justin, who was killed when he drove an off-road motorcycle into a steel cable Paul Smithling had strung across a portion of the Smithlings' property. Clark also alleged that the cable constituted a public nuisance. Clark appeals from the trial court's granting of summary judgment in favor of the District.¹

Background

¶ 2 The following facts are undisputed. Exercising its rights reserved under the Canal Act of August 30, 1890, 43 U.S.C.A. § 945, the United States government entered into an agreement with the previous owner of the Smithlings' property to place and maintain an irrigation canal on the Smithlings' land as part of the Central Arizona Project. The agreement gave the United States a right-of-way easement over the property and provides in part:

The Landowner hereby ratifies and affirms the right of the United States to construct, reconstruct, operate and maintain the aforementioned water distribution system canals, laterals and ditches within said parcel and to exercise the right of ingress thereto and egress therefrom, in accordance with rights reserved to the United States ...; and it is agreed by the Landowner not to ... install or construct any improvements thereon or in any other way interfere with the use thereof by the United States for the purposes described.

Pursuant to a contract with the United States, the District assumed the care, operation, and maintenance of the canal constructed on the property.

¶ 3 The canal bisects the Smithlings' land, running north and south through the eastern portion of the property. Dirt access roads on which District personnel travel to and along the canal are on each side of it. The easement for ingress and egress includes the access roads and extends eastward to the Smithlings' east property line.

¶ 4 Frustrated by people using the eastern access road to enter his property without authorization, Smithling first asked the District to construct gates across it. The District had erected gates on the access road to the west of the canal but told Smithling it did not have funds to install gates on the eastern access road at the same time. Smithling then constructed a fence himself. To the east of the canal, he sank galvanized steel poles into cement footings approximately every twenty feet, beginning about eight to ten feet east of the access road on the northern boundary of his property and continuing along the northern, eastern, and southern property lines. He connected them with a single strand of quarter-inch, plasticlaminated steel cable, strung approximately three feet above the ground through eyelets in the steel poles. In order to preserve the District's access to the canal, Smithling attached the cable from the poles closest to the eastern canal access road to movable wooden sawhorses that he placed in the road. Smithling attached a sign to the sawhorses that read "No Trespassing, Access to New Magma Irrigation Only," placed signs reading "Private Property, No Trespassing," and tied colored markers to the cable, but these markers and signs were not always present.

¶ 5 After Smithling erected the cable fence, the District received complaints about it, including at least one report that a child had been injured by driving an all-terrain vehicle (ATV) into the cable. The District asked the Smithlings to remove the fence, but they refused. In August 1999, Justin was injured while riding as a passenger on an ATV that struck the Smithlings' cable fence; this accident was not reported to the District. About seven months later, Justin was killed when he drove an off-road motorcycle into approximately the same section of the cable fence on the northern boundary of the Smithlings' property just east of the eastern access road. Clark then sued the Smithlings and the District. The Smithlings settled with Clark, and the court granted summary judgment in favor of the District.

The District's Action Against the Smithlings

¶ 6 Prior to Justin's fatal accident, the District filed a complaint against the Smithlings for declaratory and injunctive relief premised on its contention that the cable fence interfered with its access to the property and violated the easement agreement. The District also asked the court to issue a preliminary injunction requiring the Smithlings to remove the cable fence. The judge denied the request for a preliminary injunction and, apparently, denied the District's later request for reconsideration, which was based in part on Justin's death.²

Discussion

¶ 7 Summary judgment is only appropriate when there are no genuine issues of material fact and the requesting party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990). We review a trial court's grant of summary judgment de novo, viewing the facts and reasonable inferences therefrom in the light most favorable to the party opposing the motion. Tonto Creek Estates Homeowners Ass'n v. Ariz. Corp. Comm'n, 177 Ariz. 49, 864 P.2d 1081 (App.1993).

¶ 8 Clark's wrongful death claim was based on his contention that the District had negligently failed to protect Justin from the Smithlings' fence or warn him of the danger. "The basic elements of actionable negligence are a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach." Ballesteros v. State, 161 Ariz. 625, 627, 780 P.2d 458, 460 (App. 1989). Therefore, "a negligence action may be maintained only if there is a duty or obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Whether a legal duty exists is a question of law that we review de novo. See Markowitz. We affirm the trial court's grant of summary judgment on this claim because we conclude the District did not owe a duty to Justin to warn him of or protect him from the Smithlings' cable fence.

¶ 9 Without coherent and developed argument, Clark concludes that "there can be no mistake that an irrigation district who constructs a road in a populated area, and allows people living in the area to use the road for travel and recreational purposes, has the legal responsibility to act reasonably." Although Clark asserts in his opening brief that it "would be improper to attempt to place [Justin] into a category, (i.e., invitee, licensee, or trespasser,) prior to determining if a duty did exist," he asserts in his reply brief that Justin was an invitee, which in and of itself established a duty. Clark also seems to concede the District would have no duty if it did not control the easement, but argues that control is a question of fact for the jury.

¶ 10 We determine whether a duty exists by analyzing the relationship between Justin and the District. See id. The only relationship between them was the connection of each to the Smithlings' property. Therefore, we must analyze both Justin's and the District's relationship to that property. We reject Clark's argument that Justin's status as an invitee by itself conferred a duty on the District. Because there is an issue of fact on whether Justin was an invitee or a trespasser, we assume for purposes of our analysis that he was an invitee, see Tonto Creek, but the District's relationship to the land is equally important.

¶ 11 It appears from the record before us that the District is a contractor of the United States, which holds an easement to use a portion of the Smithlings' property. However, we analyze the relationship between the District and Justin as if the District were itself the easement holder, because that is how both parties have argued the issue to us.³

¶ 12 As an easement holder, the District has a nonpossessory interest in the Smithlings' land. See Restatement (Third) of Property § 1.2 (2000) (easement is a nonpossessory right to enter and use land possessed by another); see also 4 Richard R. Powell, Powell on Real Property § 34.01[1] (Michael Allan Wolf ed., 2000). The holder of an affirmative easement has only a right "`to use the land of another for a specific purpose.'" Siler v. Ariz. Dep't of Real Estate, 193 Ariz. 374, ¶ 45, 972 P.2d 1010, 1019 (App.1998), quoting Ammer v. Ariz. Water Co., 169 Ariz. 205, 208, 818 P.2d 190, 193 (App.1991)

. In this case, the easement agreement granted the District a right of ingress and egress and the right to "construct, reconstruct, operate and maintain" a canal on the Smithlings' property.

¶ 13 Implicitly, the District recognizes that it might have had a duty to act with reasonable care in using the easement property. It argues, however, that it owed no duty to Justin with respect to the cable fence because it did not install or maintain the fence, and the fence was not otherwise related to its use of the property, citing Cody F. v. Falletti, 92 Cal.App.4th 1232, 112 Cal.Rptr.2d 593 (Ct. App.2001). In that case, an eleven-year-old boy was mauled by a pack of hunting and guard dogs while walking on...