Massengill v. Yuma County

• Decision Date: 13 March 1969
• Docket Number: Nos. 1,CA-CIV,s. 1
• Citation: 9 Ariz.App. 281,451 P.2d 639
• Parties: Homer A. MASSENGILL and Ruby Massengill, Administrators of the Estate of George B. Platt II, Deceased; Homer A. Massengill and Ruby Massengill, Administrators of the Estate of Billie M. Platt, Deceased, Appellants, v. YUMA COUNTY; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, Appellees. Eva McCULLOUGH, surviving widow of Robert M. McCullough, Deceased, Appellant, v. YUMA COUNTY; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, Appellees. Harry CARNEAL and Mary Carneal, his wife, Appellants, v. YUMA COUNTY; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, Appellees. 731 to 733.
• Court: Arizona Court of Appeals

Page 639

451 P.2d 639

9 Ariz.App. 281

Homer A. MASSENGILL and Ruby Massengill, Administrators of the Estate of George B. Platt II, Deceased; Homer A. Massengill and Ruby Massengill, Administrators of the Estate of Billie M. Platt, Deceased, Appellants, v. YUMA COUNTY; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, Appellees.

Eva McCULLOUGH, surviving widow of Robert M. McCullough, Deceased, Appellant, v. YUMA COUNTY; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, Appellees.

Harry CARNEAL and Mary Carneal, his wife, Appellants, v. YUMA COUNTY; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, Appellees.

Nos. 1 CA-CIV 731 to 733.

Court of Appeals of Arizona.

March 13, 1969.

Rehearing Denied April 10, 1969.

Review Granted May 6, 1969.

Moore, Romley, Kaplan, Robbins & Green, by Craig R. Kepner, Phoenix, for appellants.

Browder, Gillenwater & Daughton, by Robert W. Browder, Phoenix, for appellees.

MOLLOY, Judge.

The common question before us in these three consolidated appeals is whether plaintiffs-appellants have stated a claim upon which relief can be granted against the three defendants-appellees. The complaints here tested alleged the negligent failure of a deputy sheriff to arrest two law-violating drivers whose subsequent conduct resulted in the death of the plaintiffs' decedents.

Plaintiffs' decedents were killed shortly after midnight on August 9, 1964, on State Highway 99, a few miles north of Parker, in Yuma County. According to the plaintiffs' complaints, their deaths were caused by the grossly negligent and wanton misconduct of John Whaley, deceased, and David Wood. It is alleged that Whaley and Wood were drinking alcoholic beverages in the vicinity just prior to the accident. Against this backdrop, we set forth in full plaintiffs' allegations bearing upon the liability of defendants. The three complaints contain the same verbiage:

'(1) At all times herein mentioned Travis Yancey was the duly elected, qualified and acting Sheriff of Yuma County, Arizona, and Earl W. Keenum was a duly appointed, qualified and acting deputy sheriff of Yuma County, Arizona, acting within the course and scope of his employment.

'(2) During the late evening of August 8, 1964 and early morning of August 9, 1964, Earl W. Keenum was on duty in the parking lot used by patrons of the establishments known as Paradise Harbor and Sports Valley. Keenum knew or should have known that the foregoing establishments served alcoholic beverages, were frequented by minors, served alcoholic beverages to minors and were located along a stretch of dangerous highway which was mountainous, winding and narrow, contained sharp curves and steep hills and was heavily traveled. Keenum was occupying his marked patrol car, owned by Yuma County, which was equipped with an overhead flashing red light operated by a switch inside the car, which light when turned on, the knew or should have known from prior experience, would probably cause any driver being pursued to stop. Keenum's duty at that time included and required the apprehension and arrest of both parties to each sale of intoxicating beverages to minors and also included and required the apprehension and arrest of persons violating traffic laws and driving in an unsafe manner.

'(3) At the aforesaid time and place, John Whaley and David Wood drove their respective automobiles out of the aforesaid parking lot in a reckless manner and at a high and dangerous rate of speed. John Whaley and David Wood operated their vehicles in such a manner that they proceeded down the highway side by side and while driving in this manner passed by the patrol car of Keenum which was parked, as aforesaid, near the highway, whereupon Keenum drove onto the highway and followed behind said minors until the time of the accident, but made no effort whatsoever to apprehend them.

'(4) The vehicles being operated by John Whaley and David Wood were being operated in violation of the laws of the State of Arizona, in one or more or all of the following respects:

'(a) John Whaley was driving in a reckless manner, exceeding the speed limit, driving on the wrong side of the road, attempting to pass on a hill and on a curve, and driving while intoxicated.

'(b) David Wood was driving in a reckless manner, exceeding the speed limit, driving while intoxicated, and refusing to reduce his speed or allow John Whaley to pass him while traveling with both of the aforesaid cars abreast on a curve and hill.

'(5) All of the foregoing violations were committed in the presence of and were obvious and apparent to Keenum, who by virtue of his obligations as deputy sheriff thereupon had the duty to immediately arrest John Whaley and David Wood. Keenum knew or should have known that the driving of John Whaley and David Wood at that time created an extremely dangerous hazard to other motorists on River Road.

'(6) If Keenum had acted with reasonable diligence, he could have arrested John Whaley and David Wood before they reached the point where the aforesaid accident occurred. In spite of his duty to apprehend and arrest John Whaley and David Wood and in spite of having sufficient opportunity to do so, Keenum failed to turn on his overhead light to signal John Whaley and David Wood to stop, and failed to make any or adequate attempt to apprehend and arrest John Whaley and David Wood.

'(7) As a direct and proximate result of the foregoing negligence and disregard of duty by Keenum, John Whaley and David Wood were allowed to drive further north on River Road, whereupon a few minutes later the accident occurred in the manner hereinbefore described.'

Each of the defendants moved in the trial court to dismiss the complaints for failure to state a claim upon which relief could be granted. Their motions were granted, and judgments were entered in their behalf upon a determination by the trial judge that there was no just reason for delay in the entry of final judgment.

On a motion to dismiss, '* * * all of the material allegations of the pleadings of the nonmoving party are taken as true.' Lakin Cattle Company v. Engelthaler, 101 Ariz. 282, 284, 419 P.2d 66, 68 (1966). A complaint should not be dismissed if it sets forth facts showing that the plaintiff is entitled to relief under any theory susceptible of proof. Veach v. City of Phoenix, 102 Ariz. 195, 197, 427 P.2d 335, 337 (1967). Every reasonable intendment is to be regarded in favor of the pleader and in support of the complaint. Id.

The fact that there are few authorities closely in point on the question before us is doubtless attributable to the fact that enforceable sovereign liability arising out of the performance of 'governmental' as opposed to 'proprietary' functions is a recent development in our national jurisprudence. There was no liability for governmental acts in Arizona prior to Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963). It should be borne in mind, however, that the doctrine of sovereign immunity usually was regarded as not shielding the negligent public official from personal liability. Law-enforcement officers were held personally liable for their negligent acts in the course of their public duties in Chaudoin v. Fuller, 67 Ariz. 144, 192 P.2d 243 (1948), and in Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304 (1947). See also the many cases collected in the Annotation at 60 A.L.R.2d 873. But see Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115 (1924).

The distinct principle of Official immunity has, however, often served to shield both the governmental entity and the individual public official from tort liability where the wrong complained of has been committed in the course of performing a 'discretionary' as opposed to a 'ministerial' public duty. The basis of the doctrine of official immunity is most cogently set forth in the opinion of the late Judge Learned Hand in the case of Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949). It is designed primarily to assure public officials of freedom from retaliatory litigation by persons adversely affected by official decisions, to the end that public officials may exercise the powers and duties of their offices in the public interest without fear or favor. Official immunity is sometimes referred to as 'executive' immunity, and the breadth of its application to officials within the federal government is shown by the list compiled at footnote 5 in the Court's opinion in Norton v. McShane, 332 F.2d 855 (5th Cir. 1964), at 859--860. 'Official' or 'executive' immunity is usually distinguished from the principle of 'judicial' immunity, which affords absolute protection to judges, magistrates, and quasi-judicial officers in the performance of the duties of their offices. See Wilson v. Hirst, 67 Ariz. 197, 193 P.2d 461 (1948); Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938); Industrial Commission v. Superior Court, etc., 5 Ariz.App. 100, 423 P.2d 375 (1967).

We need not, in this jurisdiction, puzzle over the question of whether the doctrine of official immunity affords protection to first-level law-enforcement officers and the public entity which they serve. In Patterson v. City of Phoenix, 103 Ariz. 64, 436 P.2d 613 (1968), our Supreme Court held that, although police officers '* * * exercise some discretion in the execution of their duties * * *,' 103 Ariz. 68, 436 P.2d 617, the employer municipality is liable for their tortious acts. While only the City of Phoenix was made a defendant in the Patterson case, a close examination of the Court's discussion of the subject of official immunity, 103 Ariz. 67, 68, 436 P.2d 616--617, leads us to the inescapable conclusion that, notwithstanding considerations of personal financial hardship, the protection of the doctrine of official immunity is to be likewise unavailable to the individual law-enforcement officer. ¹ ] If, as does not seem likely, the Court's reference to liability insurance, at 103 Ariz. 67, 68, 436 P.2d 616--617,...