Lowman v. City of Mesa, 1

• Decision Date: 27 March 1980
• Docket Number: No. 1,CA-CIV,1
• Citation: 125 Ariz. 590,611 P.2d 943
• Parties: Patricia L. LOWMAN, Appellant, v. CITY OF MESA, a Municipal Corporation, Appellee. 4479.
• Court: Arizona Court of Appeals

Page 943

611 P.2d 943

125 Ariz. 590

Patricia L. LOWMAN, Appellant, v. CITY OF MESA, a Municipal Corporation, Appellee.

No. 1 CA-CIV 4479.

Court of Appeals of Arizona, Division 1, Department B.

March 27, 1980.

Rehearing Denied May 16, 1980.

Review Denied June 3, 1980.

John D. Lewis, P. C., by John D. Lewis, Tempe, for appellant

Udall, Shumway, Blackhurst, Allen, Bentley & Lyons by Merle M. Allen, Jr., and Steven H. Everts, Mesa, for appellee.

OPINION

O'CONNOR, Judge.

This is an appeal from a summary judgment in favor of appellee. The sole issue is whether a municipality can be held liable for personal injuries as a result of its failure to remove a stalled vehicle from its streets or of its failure to warn the motoring public of its existence. We hold that it can under the circumstances described herein and that the trial court erred in granting summary judgment.

Early in the morning, August 7, 1976, an unattended vehicle was parked on the roadway of the westbound curb lane of Baseline Road near its intersection with Pennington Street, within the city limits of Mesa, Arizona. The driver, Shirley Ballesteros, left the vehicle at that location because of mechanical difficulties. Eighteen hours later, in the early morning hours of August 8, 1976, an automobile driven by appellant struck the unattended vehicle. The city had no actual notice of the presence of the stalled vehicle. The police officers on duty at the time testified they had not seen the stalled vehicle.

The city has a duty to keep its streets reasonably safe for travel. City of Phoenix v. Clem, 28 Ariz. 315, 237 P. 168 (1925). As stated in the Clem opinion, 28 Ariz. at 327, 237 P. at 172: ¹ 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.

In Delarosa v. State, 21 Ariz.App. 263, 265, 518 P.2d 582, 584 (1974), the court stated, "The state's liability is not limited to defects created by the state, but includes dangerous conditions permitted by it to continue in existence." However, in Delarosa, a directed verdict in favor of the state was upheld because the evidence disclosed that the unattended vehicle had been left parked off the travelled portion of the roadway, and it later rolled onto the highway causing a collision as it did so. The court found the evidence insufficient to establish that the state had negligently permitted the vehicle to obstruct the road.

In Jensen v. Maricopa County, 22 Ariz.App. 27, 522 P.2d 1096 (1974), a summary judgment in favor of the county was reversed where the plaintiff, a motorcyclist, had collided with a steer on the roadway which was not fenced. No signs warning of possible livestock on the highway had been posted. The court stated:

The duty of the County is to maintain its highways reasonably safe for travel. City of Phoenix v. Weedon, 71 Ariz. 259, 226 P.2d 157 (1950). The municipal duty to keep public ways reasonably safe for persons using them in the usual way ordinarily extends to such obstructions and hazards as actually impede a normal and reasonable use of such ways. 19 McQuillin, Municipal Corporations § 54.11, p. 31 (1967). We believe the facts of this case are analogous to the situation where a third person creates an obstruction upon a highway. In such cases the municipality can be liable for the obstruction caused by an abutting landowner when it has notice of the defect and fails to remove or warn of its existence. Id. at § 54.43, p. 116. In order to charge the municipality with liability for such obstruction created by a third person, the municipality must have had actual notice of the condition or notice of such facts and circumstances as would, by the exercise of reasonable diligence, have led a prudent person to such knowledge.

22 Ariz.App. at 28-29, 522 P.2d at 1097-98 (emphasis added).

Appellee contends that any duty to remove the stalled vehicle was one owed only to the public at large and not to any individual, and that the case is governed by Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969). The court in Massengill upheld dismissal of an action against Yuma County where the injuries resulted from the actions of two intoxicated drivers whom a Yuma County deputy sheriff had seen on the highway. The injured party argued that the officer could have arrested the two drivers and thereby could have prevented the subsequent accident and injuries. The opinion held that, where injuries result from a failure of a governmental agency or officer to protect the public generally from external hazards, there is no liability in negligence to the member of the public who suffers injuries as a result. However, the court in Massengill recognized that:

there are situations where a government, or agency thereof, can by its conduct, narrow an obligation owing to the general public into a special duty to an individual, for the breach of which it is responsive in damages.

104 Ariz. at 523, 456 P.2d at 381.

Other Arizona cases have found only a general duty to the public and have refused to impose liability on the governmental entity for individual injuries. See Bagley v. State, 122 Ariz. 365, 595 P.2d 157 (1979) (failure of mine inspector to shut down a mine violating safety standards); McGeorge v. City of Phoenix, 117 Ariz. 272, 572 P.2d 100 (App.1977) (failure of police to detain a person known to police to have violent tendencies or failure to warn decedent of those tendencies); Ivicevic v. City of Glendale, 26 Ariz.App. 460, 549 P.2d 240 (1976) (failure of police to prevent intoxicated person from driving); Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973) (failure of fire department officials to enforce fire code). Cf. Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977) (...