Harris v. Buckeye Irr. Co.

• Decision Date: 24 April 1978
• Docket Number: No. 13570,13570
• Citation: 118 Ariz. 498,578 P.2d 177
• 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.
• Court: Arizona Supreme Court

Page 177

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. 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 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 bridge:

"Q Mr. McNabb, let me ask you something about the use of the structure during the summer months when they have the Little League. I understand that Little League games are played just to the south of the high school property in the park over there.

"A That's right.

"Q And there is a swimming pool?

"A That's right.

"Q In the summertime, younger children, let's say grade school age use that structure more in the summer than they do in the winter

"MR. BEALE: I object to the form.

"THE WITNESS: Well, I would estimate there is not too much difference in the amount of traffic. The school activities attract them during the wintertime, and recreation and the swimming pool and downtown attract them all year around. I would estimate probably about the same amount of traffic."

The Principal estimated that 100 to 200 people a day used the bridge.

The attitude of the defendants can best be shown by the following deposition of the manager of the district, Wilbur W. Weigold, concerning a near drowning four months prior to the death of the Harris boy:

"Q Do you know Mrs. Tilley, the mother of the boy that fell in there?

"A No, sir.

"Q Never met her?

"A No, sir.

"Q Just talked to her on the phone?

"A I assume that is the name. I don't even recall the name of the woman that called me.

"Q Did she identify herself when she called?

"A I suppose she did. I don't recall.

"Q And after she did call, you did know that her boy had fallen into the canal?

"A No; I did not know it.

"Q Well, she told you he did, didn't she?

"A That doesn't mean he fell.

"Q I mean she did tell you that he had fallen in?

"A Well, now, he could have fallen in or he could have gotten in the canal by himself. I have no way of knowing those things.

"Q My question is: Did she tell you that he fell in the canal?

"A Yes.

"Q And did she express some real concern over this structure or facility?

"A I would say probably she did or she wouldn't have called me.

"Q And after she called you, did you consider or make take any steps to make the structure modify the structure?

"A No, sir.

"Q Why?

"A Because it is the obligation of the parents to keep the kids off of this property and keep them off the property adjoining it on the north and the property adjoining it on the south, which is all private property. They have to trespass from up to the north across the railroad tracks on private property to get to this particular point. When they leave this point, they are on private property and they are trespassing on that if they go on to the high school or to our property or anybody else's property.

"Q Well, that's your duty to see that the facility is safe for anybody that might use it, isn't that correct?

"A No, it isn't.

"A It's...