Massengill v. Yuma County

• Decision Date: 01 July 1969
• Docket Number: No. 9627--PR,9627--PR
• Parties: , 41 A.L.R.3d 692 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 Tuma County, and Earl W. Keenum, Appellees.
• Court: Arizona Supreme Court

Page 376

456 P.2d 376

104 Ariz. 518, 41 A.L.R.3d 692

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 Tuma County, and Earl W. Keenum, Appellees.

No. 9627--PR.

Supreme Court of Arizona, In Banc.

July 1, 1969.

Rehearing Denied July 15, 1969.

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

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

McFARLAND, Justice:

County of Yuma, State of Arizona; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, petitioners in this case--hereinafter referred to as defendants--petitioned for and have been granted a review from a decision of the Court of Appeals, Division One, which reversed an order and judgment of the Yuma County Superior Court granting the defendants' motion to dismiss the complaint on the grounds that it failed to state a claim upon which relief could be granted. 9 Ariz.App. 281, 451 P.2d 639. The decision of the Court of Appeals is vacated.

This being a motion to dismiss we take the facts pleaded in the complaint as true, and set them forth here basically as stated in the brief on appeal. On August 9, 1964, a head-on automobile collision occurred near Parker in Yuma County, Arizona, which resulted in the tragic deaths of five persons and a sixth totally disabled for life. The appellants brought the present wrongful death and personal injury actions against a number of defendants including Yuma County, Sheriff Travis Yancey and Deputy Sheriff Earl W. Keenum. Travis Yancey was the duly-elected, qualified and acting sheriff of Yuma County, Arizona, and Earl W. Keenum was his duly-appointed, qualified and acting deputy sheriff, acting within the course and scope of his employment.

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 (who are also defendants in the court below but are not involved in this appeal). Homer A. and Ruby Massengill, Administrators of the Estates of George B. Platt, II, deceased, and Billie M. Platt, deceased--hereinafter referred to as plaintiffs--contend that 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, containing 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, he knew or should have known from prior experience, would probably cause any driver being pursued to stop. Kennum'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.

John Whaley and David Wood, each using his own car, drove out of the parking lot in a reckless manner at a high rate of speed. They proceeded down the highway side by side, and while driving in this manner passed the patrol car of Keenum which was parked near the highway. Keenum drove onto the highway, and followed behind them until the time of the accident, but made no effort whatsoever to apprehend them.

As alleged by plaintiffs in their complaint, the vehicles 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.

'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.

'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.

'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.'

The defendants argue that there was no duty owed to the plaintiffs upon which liability can be based, and that, if there was a duty, the breach of it was not the proximate cause of the injuries to the plaintiffs. The latter issue is one for the triers of the facts, but we need not ciscuss it here because of our disposition of this matter on the first question.

There has been much discussion, by the plaintiffs, of the doctrine of sovereign immunity, and the impact thereon of our decisions in Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107; Veach v. City of Phoenix, 102 Ariz. 195, 427 P.2d 335; and Patterson v. City of Phoenix, 103 Ariz. 64, 436 P.2d 613. But nowhere in the record can we find any attempt by the defendants to envelop themselves in the cloak of immunity. Nor can they do so since this Court in the most unquestionable terms relegated that archaic doctrine to the dustheap of history.

'We are of the opinion that when the reason for a certain rule no longer exists, the rule itself should be abandoned. After a thorough reexamination of the rule of governmental immunity from tort liability, we now hold that it must be discarded as a rule of law in Arizona and all prior decisions to the contrary are hereby overruled * * *.' Stone, supra, 93 Ariz. at 387, 381 P.2d at 109.

Veach v. City of Phoenix, supra, and Patterson v. City of Phoenix, supra, re-affirmed that decision. But we did not, by those decisions, change the basic elements of actionable negligence the components of which are a duty owed to the plaintiff, a breach thereof and injury proximately caused by such breach. Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652.

It is the first of these elements that concerns us here. The general rule pertaining to governmental agencies and public officers is that

'* * * if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution.'

Cooley, Torts, § 300, p. 385 (4th ed.). See also, Annala v. McLeod, 122 Mont. 498, 206 P.2d 811; Jacobson v. McMillan, 64 Idaho 351, 132 P.2d 773; Tomlinson v. Pierce, 178 Cal.App.2d 112, 2 Cal.Rptr. 700; Libertella v. Maenza, 21 Misc.2d 317, 191 N.Y.S.2d 191, aff'd., 16 A.D.2d 831, 229 N.Y.S.2d 229; Scott v. City of New York, 2 A.D.2d 854, 155 N.Y.S.2d 787, aff'd., 9 N.Y.2d 764, 215 N.Y.S.2d 72, 174 N.E.2d 745; Leger v. Kelley, 19 Conn.Sup. 167, 110 A.2d 635, aff'd., 142 Conn. 585, 116 A.2d 429; Mechem, Public Officers §§ 598--600; 65 C.J.S. Negligence § 4(8).

In Leger v. Kelley, supra, after discussing sovereign immunity of the defendant as commissioner of motor vehicles, the court resolved, in the defendant's favor, the question of his individual responsibility for alleged negligence of his duties as follows:

"* * * The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance.' 3 Cooley, Torts (4th Ed.) p. 385; see also 43 Am.Jur. 84. 'The law seems to be clear that if the duty discharged is a public duty and not a duty which the individuals owe to any particular person, then by their negligence or wanton or wilful omission in the performance of this public duty, the officers are not liable except to the state. People of State of Illinois for use of Trust Co. of Chicago v. Maryland Casualty Co., 7 Cir., 132 F.2d 850, 852. 'Before he (an officer) can be made liable for omitting to do something, the obligation to do it must be absolute, specific and imperative. The duty must also be one owing to the person injured by his nonfeasance.' 2 Shearman & Redfield, Negligence (Rev.Ed.) p. 804; see also Burdrow v. Lynch, 7 Conn.Sup. 318--320. The statutory duty must be owing to the person injured, and not to someone else in order that a violation thereof shall constitute actionable negligence. Longstean v. Owen McCaffrey's Sons, 95 Conn. 486, 494, 111 A. 788.' Leger v. Kelley, 110 A.2d at 638.

Perhaps this rule can best be clarified by its exception. In Schuster v. City of New York, 5 N.Y.2d 75, 180...