Matts v. City of Phoenix

• Decision Date: 03 March 1983
• Docket Number: No. 1,CA-CIV,1
• Citation: 137 Ariz. 116,669 P.2d 94
• Parties: Pennie J. MATTS, a single person, and Dale C. Burlingham, a single person, Plaintiffs-Appellants, v. The CITY OF PHOENIX, a municipal corporation, Defendant-Appellee. 5955.
• Court: Arizona Court of Appeals

Page 94

669 P.2d 94

137 Ariz. 116

Pennie J. MATTS, a single person, and Dale C. Burlingham, a single person, Plaintiffs-Appellants, v. The CITY OF PHOENIX, a municipal corporation, Defendant-Appellee.

No. 1 CA-CIV 5955.

Court of Appeals of Arizona,

Division 1,

Department C.

March 3, 1983.

Rehearing Denied Apr. 7, 1983.

Review Granted June 14, 1983.

William B. Revis, Ltd. by Donald R. Crowell, Phoenix, for plaintiffs-appellants

Jones, Teilborg, Sanders, Haga & Parks, P.C. by Donald C. Stevens II, Phoenix, for defendant-appellee.

OPINION

BROOKS, Judge.

The sole question presented by this appeal is whether the trial court erred in directing a verdict for the defendant at the close of plaintiffs' case.

Plaintiffs/appellants Pennie J. Matts and Dale C. Burlingham filed a complaint in Maricopa County Superior Court against the City of Phoenix and others to recover damages for bodily injuries and property damage sustained when Burlingham drove his car into a deep hole on the right shoulder of 38th Avenue near the intersection of 38th Avenue and Missouri Avenue. ¹ Appellants alleged that the city was negligent in failing to keep the roadway in a safe condition. This matter was tried to a jury and at the close of plaintiffs' case, the city moved for a directed verdict. The trial court granted the motion and entered judgment for the city. Matts and Burlingham filed a motion for new trial which was denied and they timely appealed. We affirm the trial court.

In determining whether a directed verdict in favor of the city was proper, we are guided by the well established principle that if the evidence, when viewed most favorably to the plaintiff, warrants submission of the matter to a jury on any theory presented, a directed verdict must be reversed. Bailey v. Montgomery Ward and Co., 6 Ariz.App. 213, 217, 431 P.2d 108, 112 (1967). However, a directed verdict must be affirmed if any of the grounds on which the motion is based are sufficient and the result is the only one that could be reached as a matter of law. Davis v. Weber, 93 Ariz. 312, 380 P.2d 608 (1963); Cowen v. Valley Nat. Bank, 67 Ariz. 210, 193 P.2d 918 (1948). A directed verdict for the defendant is proper where the plaintiff has introduced no evidence which would justify a reasonable person in returning a verdict in favor of the plaintiff. Fruth v. Divito, 26 Ariz.App. 154, 546 P.2d 1163 (1976); Hildebrand v. Minyard, 16 Ariz.App. 583, 494 P.2d 1328 (1972). We must therefore determine whether plaintiffs' evidence on the elements of negligence was sufficient to warrant submission to a jury.

The elements of actionable negligence are: a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach. Boyle v. City of Phoenix, 115 Ariz. 106, 107, 563 P.2d 905, 906 (1977). A municipality owes the public a duty to keep its streets reasonably safe for travel, but it is not an insurer of those using the streets. Wisener v. State, 123 Ariz. 148, 150, 598 P.2d 511, 513 (1979); Arizona State Highway Department v. Bechtold, 105 Ariz. 125, 129, 460 P.2d 179, 183 (1969); Phoenix v. Clem, 28 Ariz. 315, 327, 237 P. 168, 172 (1925). For a municipality to be liable for failure to repair, it must have first received actual or constructive notice of the defect. Wisener v. State, supra, 123 Ariz. at 150, 598 P.2d at 513; City of Phoenix v. Williams, 89 Ariz. 299, 304, 361 P.2d 651, 655 (1961).

Appellants argue that they presented evidence from which a jury could find that the street in question was in an unreasonably dangerous condition and that the city had both actual and constructive notice of that condition. While we find that the record contains evidence of the size and location of a hole from which a jury could find the street to be in an unreasonably dangerous condition, we find no evidence from which reasonable minds could conclude that the city had either actual or constructive notice of the defect. The sole evidence relied upon by appellants to prove that the city had actual notice of the hole is a notation in a street maintenance log of the City of Phoenix. This document shows that on April 4, 1979 a barricade was "replaced" at the intersection of 38th Avenue and Missouri. Appellants emphasize the word "replace" and argue that since there were no other notations with respect to a barricade at 38th Avenue and Missouri between the date of the accident, March 10, 1979, and April 4, 1979, a reasonable person could infer that a barricade had been placed in that location prior to the accident but had been moved on the night of the accident. Had the city placed the barricade at that location prior to the accident, it might be reasonable to infer that the city had actual knowledge of the hole in the roadway.

The city argues that the street maintenance logs do not indicate precisely where the barricade was placed or why it was placed or whether it related in any way to the hole in question. Further, there was no evidence that the barricade was ever in place prior to the accident. The city contends that the jury would have been engaging in sheer speculation if it had been permitted to consider a log notation made almost a month after the accident to establish actual knowledge of the defect by the city. We agree.

Even if the barricade had been "replaced" on April 4, 1979, it could have been originally placed after March 10, 1979. There were no probative facts that the barricade had been erected before the accident. It would have been improper for the trial court to permit the jury to draw speculative inferences which were not based on probative facts. In Re Schade's Estate, 87 Ariz. 341, 344, 351 P.2d 173, 175 (1960); Casey v. Beaudry Motor Co., 83 Ariz. 6, 12, 315 P.2d 662, 666 (1957).

We next consider appellants' contention that they presented evidence of constructive notice. In order to establish constructive notice, appellants were required to introduce some evidence that the defect complained of had existed for a sufficient length of time from which it could be inferred that, by the exercise of reasonable diligence, the city should have known of the defect. See City of Phoenix v. Brown, 88 Ariz. 60, 65, 352 P.2d 754, 758 (1960); City of Phoenix v. Weedon, 71 Ariz. 259, 265, 226 P.2d 157, 161 (1950). Appellants rely on two items of evidence in that regard: (1) photographs of the hole and (2) a City of Phoenix street maintenance log entry which indicates that five tons of "ABC" were transported to 38th Avenue and Missouri on April 13, 1979.

We first address appellants' contention with respect to the photographs of the hole. Appellants argue that a jury could draw a reasonable inference based on the photographs that the hole had existed for a substantial period of time. They argue that the photographs demonstrate a large hole with rounded edges and conclude that the hole was "one slowly eroded by water run-off into the adjoining SRP Canal." Other than the photographs themselves, the only testimony concerning the hole was appellant Burlingham's testimony as to its size and the fact that the hole had rounded edges. We note that appellant attempted to give his own opinion that the hole had been there for some time; however, the trial court ordered that testimony stricken from the record.

Appellants rely on Leon v. City of Miami, 312 So.2d 518 (Fla.Ct.App.1975), as standing for the proposition that the photographs alone constitute tangible evidence of the scene sufficient to raise an inference as to the length of time that the hole was present. We note that another district of the Florida Court of Appeals disagreed with the Leon rationale, Hannewacker v. City of Jacksonville Beach, 402 So.2d 1294 (Fla.Ct.App.1981), and that the Florida Supreme Court addressed the issue in Hannewacker v. City of Jacksonville Beach, 419 So.2d 308 (Fla.1982).

In Hannewacker, the Florida Supreme Court noted that the normal procedure for entering evidence of the duration of a defect is through testimony of a witness with personal knowledge of the duration, or through the opinion of an expert witness. The court further noted that it is a preferred procedure to require live testimony in addition to a photograph to support the critical element of time. The court found, however, that an admitted photograph can act as a "silent witness" in certain limited...