Myers v. City of Tempe

• Decision Date: 21 February 2006
• Docket Number: No. CV-05-0154-PR.,CV-05-0154-PR.
• Citation: 212 Ariz. 128,128 P.3d 751
• Parties: Richey MYERS, surviving husband of Jo Ann Myers, deceased, on his own behalf and on behalf of Laura Myers and Mark Myers, surviving children of Jo Ann Myers, deceased, Plaintiffs-Appellants, v. CITY OF TEMPE, an Arizona municipal corporation, Defendant-Appellee.
• Court: Arizona Supreme Court

Page 751

128 P.3d 751

212 Ariz. 128

Richey MYERS, survivinghusband of Jo Ann Myers, deceased, on his own behalf and on behalf of Laura Myers and Mark Myers, surviving children of Jo Ann Myers, deceased, Plaintiffs-Appellants, v.CITY OF TEMPE, an Arizona municipal corporation, Defendant-Appellee.

No. CV-05-0154-PR.

Supreme Court of Arizona, En Banc.

February 21, 2006.

Winton D. Woods & Associates, PLLC, by Winton D. Woods, III, Scottsdale, Attorneys for Richey Myers.

Tempe City Attorney's Office, by Marlene A. Pontrelli Maerowitz, City AttorneyAndrew B. Ching, Tempe, Attorneys for City of Tempe.

League of Arizona Cities and Towns, by David R. Merkel, General Counsel, Tempe, Attorney for Amicus Curiae.

OPINION

McGREGOR, Chief Justice.

¶ 1This case requires us to determine whether the City of Tempe may be held liable for the alleged negligence of the Guadalupe Fire Department(GFD) when, in compliance with an automatic aid agreement, GFD responded to Jo Ann Myers' medical emergency.We conclude that Arizona Revised Statutes(A.R.S.)section 12-820.01(2003) provides absolute immunity both to Tempe's decision to enter into the agreement and to the automatic dispatch of GFD.We further conclude that because Tempe delegated its duty to provide emergency services, the city cannot be held vicariously liable for the actions of another municipality's fire department.Therefore, we vacate the court of appeals' memorandum decision and affirm the superior court's order granting summary judgment in Tempe's favor.

I.

¶ 2 Tempe, Guadalupe, and five other municipalities participate in the East Valley Automatic Aid Agreement for Fire Protection and Other Emergency Services (the AAA).The municipalities entered into the AAA "to continue and improve the nature and coordination of emergency assistance to incidents that threaten loss of life or property within the geographic boundaries of their respective jurisdictions."The agreement requires participants to provide an Automatic Vehicle Location System and a computerized Geographic Information System that, used together, "allow the dispatch system to match the closest response unit to the emergency" and then to dispatch that unit, notwithstanding that the emergency may be in a municipality other than the one in which the dispatched unit is located.Tempe city officials, advised by Tempe's Fire Chief and Assistant Fire Chief, expressly decided the advantages of entering into the agreement outweighed the risks.

¶ 3 On July 31, 2002, Jo Ann Myers experienced an "asthma-like attack" while in Tempe.In accordance with the AAA, the closest fire unit, which was from GFD, responded to Ms. Myers' emergency.GFD allegedly intubated Ms. Myers improperly, ultimately causing her death.

¶ 4 On April 22, 2003, Richey Myers(Myers), Jo Ann Myers' surviving spouse, brought suit against the City of Tempe, as well as the Town of Guadalupe and the members of GFD who responded to the call, alleging that GFD's gross negligence caused Ms. Myers' death.Myers claimed that Tempe was responsible for his wife's death because it "had a non-delegable duty [to provide emergency medical services] to persons within its borders, including Jo Ann Myers."Tempe moved for summary judgment, arguing that it could delegate any duty to provide emergency care within its borders and that A.R.S. § 12-820.01.A.2 affords the city absolute immunity for its decision to make such a delegation.The trial court concluded that because "Plaintiff's action is premised on Defendant's `fundamental policy decision' to enter into the AAA," the city was entitled to absolute immunity.

¶ 5The court of appeals reversed, noting that "Tempe is not absolutely immune for actions and decisions made in the course of implementing the emergency response services allowed by the AAA."The court of appeals also held that, under A.R.S. § 11-952.C(2003), "Tempe cannot relieve itself of liability for providing emergency services by delegating its obligation to provide those services to other entities through the AAA."

¶ 6We granted review to resolve these issues of statewide importance.SeeARCAP 23(c).We exercise jurisdiction pursuant to Article 6, Section 5.3, of the Arizona Constitution.

II.

¶ 7 Because we are reviewing a summary judgment, "we view the evidence in a light most favorable to the party opposing it."Hill-Shafer P'ship v. Chilson Family Trust,165 Ariz. 469, 472, 799 P.2d 810, 813(1990).We will assume, for purposes of our review, that the evidence is sufficient to support a finding that GFD was grossly negligent.Seeid.("Summary judgment is appropriate when there is no substantial evidence to support an alleged factual dispute, either because the tendered evidence is too incredible to be accepted by reasonable minds, or because, even conceding its truth, it leads to an inevitable legal conclusion against its proponent.").

¶ 8 Three decisions could establish a basis for Tempe's liability.The first is Tempe's decision to enter into the AAA.The second is the decision to dispatch GFD to Ms. Myers' emergency.The third is GFD's decision to provide the specific care it gave Ms. Myers.The first two decisions implicate the reach of Tempe's absolute immunity.The third decision implicates Tempe's vicarious liability.

A.

¶ 9 Deciding whether Tempe is absolutely immune involves statutory interpretation and is subject to this Court's de novo review.Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co.,177 Ariz. 526, 529, 869 P.2d 500, 503(1994).Section 12-820.01.A provides:

A public entity shall not be liable for acts and omissions of its employees constituting either of the following:

1.The exercise of a judicial or legislative function.

2.The exercise of an administrative function involving the determination of fundamental governmental policy.

Tempe makes no claim that any of its actions in this matter involve judicial or legislative functions.We focus our inquiry, therefore, on whether Tempe's challenged actions involve "[t]he exercise of an administrative function involving the determination of fundamental governmental policy."SeeA.R.S. § 12-820.01.A.2.

1.

¶ 10 The first of Tempe's decisions that could give rise to this action is the decision to enter into the AAA.That decision indisputably determined fundamental governmental policy: It involved weighing risks and gains, concerned the distribution of resources and assets, and required consulting the city's subject matter experts.SeeA.R.S. § 12-820.01.B;Doe v. State, 200 Ariz. 174, 176 ¶ 6, 24 P.3d 1269, 1271(2001)(noting that the statute"provides immunity for `such matters as . . . a decision as to the direction and focus of an entire regulatory scheme'")(quoting Fidelity Sec. Life Ins. Co. v. State, 191 Ariz. 222, 225 ¶ 11, 954 P.2d 580, 583(1998)).Myers recognizes that absolute immunity protects this decision.

2.

¶ 11 The second "decision" that conceivably could provide a basis for Tempe's liability involves the decision to dispatch GFD, rather than some other emergency unit, to respond to Jo Ann Myers' emergency.The court of appeals concluded that absolute immunity does not protect this decision because it was an implementing decision, rather than "[t]he exercise of an administrative function involving the determination of fundamental governmental policy."SeeA.R.S. § 12-820.01.A.2.

¶ 12 Myers correctly argues that we give great weight to the statute's limiting phrase, "determination of fundamental governmental policy," and have not extended absolute immunity to actions that merely implement a fundamental policy, even when those actions are themselves decisions involving some level of discretion.See, e.g., Fidelity, 191 Ariz. at 225-26 ¶¶ 10-12, 954 P.2d at 583-84(holding that the Arizona Department of Insurance's decision to grant a company's application for transfer of domicile was not entitled to absolute immunity, even though it involved some discretion, because the decision merely implemented a policy).This case, however, does not involve an implementing decision.The terms of the AAA determined, without the need for any additional implementing decision, which emergency unit would respond to Ms. Myers' call for help.The Automated Vehicle Location System, working in conjunction with the Geographic Information System, identified the emergency unit nearest Ms. Myers, and the dispatcher sent that unit.Tempe's participation in the AAA and the terms of that agreement, without anything more being required, caused the dispatch of GFD to Ms. Myers' emergency.It would be strange indeed if, as Myers concedes, the decision to enter into the AAA were protected by statutory immunity, yet the decision to dispatch GFD to the emergency, which follows automatically from the terms of the AAA, nonetheless deprived Tempe of immunity.

¶ 13 Because no city made an "implementing decision,"this case is not like those involving an allegedly flawed implementation of a fundamental governmental policy.In Fidelity,plaintiffs alleged that they were harmed by a decision that implemented an insurance department policy.191 Ariz. at 224 ¶ 2, 954 P.2d at 582.Likewise, in Doe,we held that "the State's decision to require that teachers be certificated, as well as decisions related to such matters as establishing certification requirements . . . receive absolute immunity," but if "the State erred in its processing of a particular teaching application," only qualified immunity would apply.200 Ariz. at 177 ¶¶ 9, 10, 24 P.3d at 1272(2001).Both opinions, which held that implementing decisions are not entitled to absolute immunity, involved allegedly erroneous decisions that were made to implement fundamental policy decisions.This case involves no such process.Myers does not and could not claim that the dispatcher erred in sending the GFD.The AAA unambiguously dictated that "decision."

¶ 14The facts of the instant case are more comparable to those of ...