Markowitz v. Arizona Parks Bd.

Citation706 P.2d 364,146 Ariz. 352
Decision Date05 September 1985
Docket NumberNo. 18033-PR,18033-PR
PartiesRuth MARKOWITZ and David Lee Markowitz, Plaintiffs-Appellants, v. ARIZONA PARKS BOARD and State of Arizona, Defendants-Appellees.
CourtSupreme Court of Arizona
353]
Howard, DeRoon & Seyffer by Louis DeRoon III, Phoenix, Kreinces, Hemley & O'Brien by Leonard Kreinces, New York City, for plaintiffs-appellants

Teilborg, Sanders & Parks by John C. Gemmil, James A. Teilborg, Phoenix, for defendants-appellees.

FELDMAN, Justice.

Ruth Markowitz (plaintiff) brought this action on behalf of her son, David Lee Markowitz (David) to recover for injuries sustained by David as a result of a dive into Lake Havasu. Lake Havasu Recreation Area is owned by the United States government and leased by it to the state of Arizona. Plaintiff also named Joseph T. Falline, Commissioner of the Arizona Land Department, and Michael A. Ramnes, Director of the Arizona Park Board, as defendants. These claims were dismissed by the trial court. The state, the only defendant remaining, moved for summary judgment, primarily claiming that it had breached no duty owed to David. The trial court granted summary judgment in favor of the state and the court of appeals affirmed, one judge concurring specially and the other

judge dissenting. We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(3). We granted review to again examine the theory of duty. Ariz.R.Civ.App.P., Rule 23, 17A A.R.S.

FACTS

The facts are not greatly in dispute. In June of 1975, David, then fifteen years of age, went to Lake Havasu with a group of friends. The group camped at a site known as "Three Dunes" and enjoyed two days of water skiing and camping. On the third day, one of David's friends swam and dived in a cove not directly visible from the campsite and located approximately sixty yards away. David's friend told the rest of the group about the cove and some of the party, including David, took the boat to the cove around 7:00 p.m. in the evening.

David had not seen the cove before. Without entering the water to check its depth, he climbed the path toward what looked to him to be a diving spot. No signs prohibiting diving or warnings of any kind were posted in the area or at the park entrances. David described the path leading to the diving spot on the cliff as "well worn." From the diving spot he looked down, saw the cove and noticed that there were about fifteen people swimming and wading in the water below. The person in front of him made a "flat" dive and swam away unharmed. David then dived from the same spot and hit his head on a shallow ledge or sandbar below the surface. As a result of the injury sustained he is permanently paralyzed. He testified that he saw neither the ledge nor sandbar before his dive, apparently because his view of the lake bottom was obscured by ripples in the lake's surface and because the light was diminishing in intensity.

David was a very good swimmer and had taken both life saving and scuba instruction. He admitted in his deposition that he was aware at the time of the accident that one should check the depth of water before diving into it. He also admitted that he was aware that it was dangerous to dive in shallow water or in water of unknown depth. He stated, however, that he would not have dived in the cove if he had seen a sign warning of dangerous diving conditions at this area, or if he had seen a sign at the entrance indicating that diving was prohibited in all areas of the park. He dived into the water because neither type of sign had been posted, other people had evidently used the "well worn" path to the diving spot, fifteen people were swimming or wading in the water in the cove, and because he observed his friend dive before him. The trial court granted the state's motion for summary judgment. The court of appeals, 146 Ariz. 260, 705 P.2d 937, affirmed, holding that the state owed no duty to David and, even if it did, the injuries were not proximately caused by any breach of that duty. The concurring opinion took the view that there was duty but no negligence. The dissent argued that duty existed and that there were questions of fact on the issues of negligence and causation.

DUTY

As the court of appeals notes, 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. Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). The issue of duty is usually one for the court as a matter of law. Beach v. City of Phoenix, 136 Ariz. 601, 667 P.2d 1316 (1983). In the present case, the court of appeals held that the state owed no duty to David because "the natural environment did not present an unreasonable risk of harm," and because the danger was open and obvious. 146 Ariz. at 264, 705 P.2d at 941.

The court stated:

If a duty on the part of ... government to take steps directed toward the safety of the public as it encounters the natural environment were to exist, it is difficult to say where it would start and where it would end.

                Id. at 263, 705 P.2d at 940.   We disagree with the application of this concept to the present case.  It may be a valid observation where the injury has occurred in areas to which the public is neither invited nor expected.  But such reasoning is unpersuasive in the present context because the defendant invited and indeed encouraged David and others to come to a parcel of land specifically dedicated to extensive public use and enjoyment.  The difficulties involved in taking steps directed toward the safety of the public in natural environments is certainly one factor to consider in determining whether the standard of care has been breached, but we cannot posit a rule of law that the state is relieved from all duty to those invited to use particular portions of public land, no matter what the hazard, simply because the state's parks are large and their terrain often inhospitable
                

The issue cannot be resolved by inquiring whether the state has a duty to place warning signs at every hundred paces along the forty-five mile shoreline and on each of the thirteen thousand acres of desert comprising the park; instead, we must ask whether the state has some duty of care for the safety of those it "invites" to use its recreational areas and, if so, the nature of that duty. In casting the question in terms of the existence or non-existence of a duty to take specific steps, the court of appeals assumes that any duty found to exist would necessarily be absolute, and would thus require the state to patrol the entire wilderness area of the state to discover and warn of all conceivable dangers, no matter how open and obvious the risk or how remote or inaccessible the area. Such an interpretation of the concept of duty is incorrect.

We have previously explained that we disapprove of attempts to equate the concept of duty with specific details of conduct. Coburn v. City of Tucson, 143 Ariz. 50, 52, 691 P.2d 1078, 1080 (1984). We there approved Dean Prosser's postulate that it is "better to reserve 'duty' for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other ..." Id., quoting W. Prosser & W. Keeton, THE LAW OF TORTS, § 53 at 356 (5th ed. 1984). We again point out that the existence of a duty is not to be confused with details of the standard of conduct. This incorrectly leads to attempts to decide on a general basis whether a defendant has a "duty" to post warning signs, City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296 (1933), fix potholes, Vegodsky v. City of Tucson, 1 Ariz.App. 102, 399 P.2d 723 (1965) or provide additional traffic signs, Rodgers v. Ray, 10 Ariz.App. 119, 457 P.2d 281 (1969). These details of conduct bear upon the issue of whether the defendant who does have a duty has breached the applicable standard of care and not whether such a standard of care exists in the first instance. Coburn v. City of Tucson, 143 Ariz. at 52, 691 P.2d at 1081.

The first question presented, therefore, is whether the state as a possessor of land is under any duty of care with respect to the safety of those it has invited to use the particular parcel of state land. Arizona recognizes that a possessor of land "is under an affirmative duty" to use reasonable care to make the premises safe for use by invitees. Tribe v. Shell Oil Co., 133 Ariz. 517, 519, 652 P.2d 1040, 1042 (1982). In the case of invitees, the law generally recognizes that this standard of reasonable care includes an obligation to discover and correct or warn of hazards which the possessor should reasonably foresee as endangering an invitee. Restatement (Second) of Torts § 343; Prosser, supra, § 61 at 419, 426. The parties agree that David was an "invitee" on state land and that the state was the possessor of that land. That relationship imposes an obligation to take reasonable precautions for David's safety. The physical circumstances involving size, length of shoreline and nature of terrain affect the determination of what is reasonable, not the existence of a duty to protect the safety of users of the park.

The court of appeals also based its conclusion regarding the lack of duty on the fact that "water of unknown depth" was a Our opinions in Tribe, supra, Coburn, supra, and Beach, supra, have evidently failed to clarify our views of the duty problem. We therefore summarize the relevant principles.

                known or open and obvious danger.  146 Ariz. at 264, 705 P.2d at 941.   Again, the possibility that the defect or hazard is "open and obvious" is a factor to be considered in determining whether the possessor's failure to remedy the hazard or provide a warning was unreasonable and therefore breached the standard of care;  it is not a factor to be used in determining the very
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