Harris v. Buckeye Irr. Co., No. 13570

• Court: Supreme Court of Arizona
• Writing for the Court: CAMERON; STRUCKMEYER
• Citation: 118 Ariz. 498,578 P.2d 177
• Docket Number: No. 13570
• Decision Date: 24 April 1978
• Parties: Thomas HARRIS for and on behalf of himself and Hallie Harris, his wife, Appellant, v. BUCKEYE IRRIGATION COMPANY and the Buckeye Water Conservation and Drainage District, a political subdivision, Appellees.

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578 P.2d 177 118 Ariz. 498 Thomas HARRIS for and on behalf of himself and Hallie Harris, his wife, Appellant,
v.
BUCKEYE IRRIGATION COMPANY and the Buckeye Water Conservation and Drainage District, a political subdivision, Appellees. No. 13570. Supreme Court of Arizona,In Banc. April 24, 1978.

Treon, Warnicke, Dann & Roush, P. A. by Richard T. Treon, Andrews, Marenda & Moseley, P. A. by William S. Andrews, Dennis P. Turnage, Phoenix, for appellant.

Jennings, Strouss & Salmon by Michael A. Beale, Phoenix, for appellees.

CAMERON, Chief Justice.

This is an appeal by the plaintiff from the granting of a motion for summary judgment. Defendant had moved for dismissal pursuant to Rule 12(b)(6) of the Rules of Civil Procedure, 16 A.R.S., and the trial court treated the motion as a motion for summary judgment pursuant to Rule 56 of the Rules.

[118 Ariz. 499]

Page 178

We must answer only one question on appeal: Does the previous case of Salladay v. Old Dominion Copper Mining Co., 12 Ariz. 124, 100 P. 441 (1909) and cases following, apply to the negligent construction and maintenance of a bridge over an irrigation canal by an irrigation company?

Viewing the facts and all reasonable inferences to be drawn therefrom in a light most favorable to the party against whom the motion was granted, Livingston v. Citizen's Utility, Inc., 107 Ariz. 63, 481 P.2d 855 (1971); Serna v. Statewide Contractors, Inc., 6 Ariz.App. 12, 429 P.2d 504 (1967), the following is necessary for a determination of this matter. The defendants, Buckeye Irrigation Company and the Buckeye Water Conservation and Drainage District, maintain an irrigation ditch near the town of Buckeye, Arizona. The ditch runs east to west. The north side of the ditch borders on a Southern Pacific Railroad right-of-way and some privately owned farm land. North of this area is a settlement of some 550 to 750 people, many with school age children. To the south of the canal is the Buckeye Union High School grounds and next to it is a Little League baseball field and a public swimming pool.

At a point near the end zone of the Buckeye Union High School football field is a checkpoint in the irrigation system. This checkpoint consists of two concrete slabs or pillars on each side of the irrigation ditch and one pillar or slab in the middle. Whenever it is desired to raise the water level upstream for irrigation purposes, boards are inserted between the slabs to check the flow of water at that point. To provide a method for employees of the irrigation district to insert boards into the slot at the checkpoint, four boards have been placed on the concrete pillar, two on each side, and nailed together in the middle by a fifth short board. The bridge is then two boards wide and though the record does not indicate the size of the boards, pictures before this court and the statement of counsel at oral argument indicate that they are not more than 12 inches wide so that the bridge is no more than 24 inches wide.

Children and adults living in the Valencia area have long used this footbridge to and from the high school, the Little League field, and the swimming pool. There is a municipal construction and maintenance bridge crossing the canal located 400 yards to the east of the checkpoint and another crossing a quarter of a mile to the west of the checkpoint.

There was testimony that prior to the accident in question, there had been at least one drowning at the same bridge and that four months before there had been a near drowning which had been brought to the attention of the defendants. The deposition testimony of the Principal of the Buckeye Union High School was as follows:

"Q And have you had some concern about the children using that check point, Mr. McNabb?

"A Yes, almost from the first school year, 1959, and my main concern has been that it's the only crossing between Fourth Street and what I have called Apache Road, which is adjacent to the Gulf station. There is a road that used to cross the canal there, and this means that the students have to walk anywhere from a quarter to a half mile to gain a crossing."

The Principal also testified that he had attempted to make the crossing safer:

"Q Did you ever say to Mr. Weigold (the manager of the irrigation company): We would like to have a better crossing to protect the children.

"A This was part of my conversation. I proposed and this is the proposal: that we had some old Salt River power poles, steel braced, very heavy, and they were long enough to span the canal, and I could visualize that we could use these steel posts, embed them in concrete and have the shop and welding students put railings on them, and it would be a safe and also a good crossing. But they saw fit not to do so.

"Q Have you ever indicated to Mr. Weigold in conversation to him that you [118 Ariz. 500]

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felt that the check point the Buckeye Union High School check point right north of the athletic field was dangerous for the children to use?

"A Well, that would be a matter of opinion. In my opinion, I could cross it the rest of my life, perhaps, and never be in danger. If people are going to cross it with bicycles or motorcycles or horses, or if they have vertigo or any of that type of thing, or if they are too young or unstable or drunk, it would be unsafe.

"Q Have you ever indicated or expressed this to Mr. Weigold in those conversations?

"A I have indicated it, I'm sure, in my talking about the reasons why we wanted to move the location."

The Principal also testified as to the use of the...