Delarosa v. State

• Decision Date: 31 January 1974
• Docket Number: No. 2,CA-CIV,2
• Citation: 21 Ariz.App. 263,518 P.2d 582
• Parties: Elizabeth DELAROSA, surviving widow of Cristobal Santiago Delarosa, Deceased, and as mother and next best friend of Santiago Kim Delarosa, Maria Elena Delarosa, Victor Delarosa and Angila Annette Delarosa, as surviving children of Cristobal Santiago Delarosa, Deceased; Amada Cristo, surviving parent of Joe Cristo, Deceased, and Amada Cristo, administrator of the Estate of Joe Cristo, Deceased, Appellants, v. The STATE of Arizona, Arizona State Highway Department, Motor Vehicle Division; and B. F. Nolan, as agent for the State of Arizona, Appellees. 1420.
• Court: Arizona Court of Appeals

Page 582

518 P.2d 582

21 Ariz.App. 263

Elizabeth DELAROSA, surviving widow of Cristobal Santiago Delarosa, Deceased, and as mother and next best friend of Santiago Kim Delarosa, Maria Elena Delarosa, Victor Delarosa and Angila Annette Delarosa, as surviving children of Cristobal Santiago Delarosa, Deceased; Amada Cristo, surviving parent of Joe Cristo, Deceased, and Amada Cristo, administrator of the Estate of Joe Cristo, Deceased, Appellants, v. The STATE of Arizona, Arizona State Highway Department, Motor Vehicle Division; and B. F. Nolan, as agent for the State of Arizona, Appellees.

No. 2 CA-CIV 1420.

Court of Appeals of Arizona, Division 2.

Jan. 31, 1974.

Rehearing Denied March 4, 1974.

Review Denied March 26, 1974.

Bernard I. Rabinovitz, Tucson, for appellants Cristo

Kali & Allen, P.C. by Kenneth L. Allen, Tucson, for appellants Delarosa.

Everett, Bury & Moeller, P.C. by J. Michael Moeller and Leonard Everett, Tucson, for appellees.

OPINION

HATHAWAY, Chief Judge.

Appellants filed wrongful death actions against the appellees alleging a violation of duty to the decedents in failing to discover a defective emergency brake on a school bus which was allegedly permitted to come into the State of Arizona without proper inspection and for failure to maintain a safe highway. The bus was apparently parked on a shoulder of Interstate 10, about 3.3 miles from the inspection station at San Simon where the vehicle entered Arizona, when it rolled into the travelled portion of the highway causing the collision out of which the wrongful death actions arose. This appeal challenges the direction of a verdict against the appellants and the denial of their motion for a new trial.

Appellants contend that there was a duty to inspect for safety defects on vehicles issued a single trip permit pursuant to Arizona statutes. ¹ This failure of inspection they contend, resulted in a motor vehicle without emergency brakes gaining access to the state highways.

Assuming arguendo a duty to inspect the safety equipment, which we do not decide, and laying aside any questions of proximate cause of the collision, we conclude that appellants cannot prevail in a suit based on such duty to inspect. For liability to attach, the duty owed must extend beyond the general public and to a particular individual. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969). In Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973), we attempted to reconcile Massengill with Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963) (imposing liability for failure to properly maintain the highway by removing old and misleading directional signs where an old highway and a new highway intersected). We concluded that governmental tort liability may be based upon the provision '. . . of the services or facilities for the direct use by members of the public . . . contrasted with the provision of a governmental service to protect the public generally from external hazards.' (20 Ariz.App. at 25, 509 P.2d at 1062). In Duran we found that the city's duty to inspect premises to enforce its counterpart of the Uniform Fire Protection Code was a duty owed to the public and not a duty owed to an individual.

The alleged duty in the instant case would be directed to reveal safety defects in vehicles and to prevent their entering the state in such condition. Applying the Duran test, we find that the state activity complained of would have been directed to protection of the general public from the external hazard of unsafe vehicles coming into the state, and would not ordinarily impose liability upon the state to an individual for violation of such duty.

Appellants contend that the State of Arizona owed the decedents, as travelers on Arizona's highways, the duty of keeping its highways safe, arguing that the state violated that duty. Stone v. Arizona Highway Commission, supra. Our Supreme Court enunciated in County of Pima v. Southern Pacific Co., 95 Ariz. 41, 44, 386 P.2d 400, 402 (1963):

'Arizona owes its citizens the duty of providing safe and convenient highways.'

See also Arizona State Highway Dept. v. Bechtold, 105 Ariz. 125, 460 P.2d 179 (1969) (post-Massengill), and State ex rel. Berger v. Cantor, 13 Ariz.App. 555, 479 P.2d 432 (1970). The standard of care owed by the state is the same as that owed by a municipality, State v. Watson, 7 Ariz.App. 81, 436 P.2d 175 (1967). An early case, City of Phoenix v. Clem, 28 Ariz. 315, 327, 237 P. 168, 172 (1925), sets forth the following standard:

'The standard of care imposed upon a municipality is that of an ordinarily prudent man. It is bound to keep its streets reasonably safe for travel, but it is not an insurer of those who travel thereon. . . . (T)he rule is that the city must have actual notice of a defect, or the defect must have existed a sufficient length of time to imply notice, before it is guilty of actionable negligence . . .. It is not entitled to notice of a dangerous condition that it has created or caused to be created. . . .'

The state's liability is not limited to defects created by the state, but includes dangerous conditions permitted by it to continue in existence. Walker v. County of Coconino, 12 Ariz.App. 547, 473 P.2d 472 (1970). In considering an icy roadways problem, Division One of this court stated:

'We realize that Clem involves a defect in the roadbed itself but we can discern no reason for not applying the same principle to any danger on a road . . .. Thus, if a roadway should suddenly and without fault of the governmental body, come By any means into a condition dangerous to travel, the governmental body is liable for damages occasioned thereby if the governmental body fails to act in a reasonably prudent manner under the circumstances.' (12 Ariz.App. at 550, 473 P.2d at 475).

Appellants quote from Smoak v. Charleston County, 128 S.C. 379, 122 S.E. 862 (1924), where the governmental agency was held liable for a truck upon the highway because it constituted a defective or dangerous condition:

'If the obstruction should be placed by a person other than the county authorities, and he should exceed the limit of permission, his liability would not absolve the county authorities, if they were advised of such condition, or with the exercise of ordinary care would have ascertained it. A permissible, temporary obstruction becomes an unlawful obstruction when it has been allowed to remain longer than a reasonable time for its removal or without the necessary precautions. At that point the duty of the county authorities to remove it or guard against its consequences begins, as it exists in reference to all other defects. We know of no law which would excuse a county upon the ground that it did not know of a defect, when it appears that proper diligence would...