McKay v. City of Tucson, 050918 FED9, 17-15587

Docket Nº:17-15587
Party Name:MEGAN MCKAY, Plaintiff-Appellant, v. CITY OF TUCSON, Defendant-Appellee.
Judge Panel:Before: W. FLETCHER and TALLMAN, Circuit Judges, and MORRIS, [***
Case Date:May 09, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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MEGAN MCKAY, Plaintiff-Appellant,

v.

CITY OF TUCSON, Defendant-Appellee.

No. 17-15587

United States Court of Appeals, Ninth Circuit

May 9, 2018

NOT FOR PUBLICATION

Submitted April 12, 2018 [**] San Francisco, California

Appeal from the United States District Court for the District of Arizona James Alan Soto, District Judge, Presiding D.C. No. 4:14-cv-02317-JAS

Before: W. FLETCHER and TALLMAN, Circuit Judges, and MORRIS, [***] District Judge.

MEMORANDUM[*]

Megan McKay appeals an adverse summary judgment in favor of the City of Tucson ("the City"). McKay brought this action alleging negligence and seeking to recover damages she suffered when her bicycle tire was lodged in the flangeway gap of a streetcar track. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court properly held that the City is immune under Ariz. Rev. Stat. § 12-820.03 as a matter of law, and did not erroneously shift the burden of establishing each element of the affirmative defense to McKay. First, there is no genuine dispute of material fact that the injury "arose out of a plan or design for the construction, maintenance, or improvement of a roadway or roadway feature[.]" Glazer v. State, 347 P.3d 1141, 1145 (Ariz. 2015). The Sun Link's Trail track is embedded in the road, and thus constitutes a "roadway or roadway feature." See Edwards v. Bd. of Supervisors of Yavapai Cty., 229 P.3d 233, 234- 35 (Ariz.Ct.App. 2010) (holding that the construction of a culvert was covered by § 12-820.03 as a matter of law); see also Ariz. Rev. Stat. § 28-601(22) (defining "roadway" as the "portion of a highway that is . . . ordinarily used for vehicular travel" (emphasis added)).

The Sun Link was also constructed "for the . . . improvement of a roadway[.]" Glazer, 347 P.3d at 1145. That the T-rail track poses a risk to bicyclists does not erase the benefits the Pima County voters perceived when they approved the streetcar project in 2006. In sum, the district court properly applied the statute's plain language to the undisputed facts in the record. See Bilke v. State, 80 P.3d 269, 271 (Ariz. 2003) (en banc).

Second...

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