Salt River Valley Water Users' Ass'n v. Superior Court, In and For County of Maricopa
| Decision Date | 21 October 1993 |
| Docket Number | No. 1,CA-SA,1 |
| Citation | 178 Ariz. 70,870 P.2d 1166 |
| Parties | SALT RIVER VALLEY WATER USERS' ASSOCIATION, Petitioner, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA; Daniel A. Barker, a judge thereof, Respondent Judge, Melissa SHOEMAKER and Paul Shoemaker, a married couple, individually and on behalf of their minor son, Michael Shoemaker, Real Parties in Interest. 93-0172. |
| Court | Arizona Court of Appeals |
This is a petition for special action brought by defendant Salt River Valley Water Users' Association ("SRP") to review the trial court's denial of a motion for summary judgment in a case in which a six-year-old child drowned in an SRP culvert. SRP claimed immunity from suit under the doctrine announced in Salladay v. Old Dominion Copper Mining Co., 12 Ariz. 124, 100 P. 441 (1909). The trial court denied SRP's first motion for summary judgment, finding that disputed issues of fact existed concerning real parties in interests' ("plaintiffs") assertion that SRP was not protected from suit by the Salladay doctrine. The trial court refused to consider SRP's second motion for summary judgment, concluding that the motion was a "horizontal appeal." This court granted an interlocutory stay of the proceedings and accepted jurisdiction with this opinion to follow.
We first conclude that because SRP's second motion for summary judgment was based on additional evidence discovered after the first motion for summary judgment, the second motion was not a "horizontal appeal." Second, we conclude that because irrigation districts are immune from suit for attractive nuisance claims involving injury or death to trespassing children, SRP is entitled to the benefit of the Salladay doctrine. Finally, we conclude that plaintiffs did not establish a triable issue of fact that SRP acted with conscious disregard for the rights of the public so as to deprive SRP of immunity under Harris v. Buckeye Irrigation Co., 118 Ariz. 498, 578 P.2d 177 (1978). Consequently, we hold that SRP is entitled to immunity and that the trial court abused its discretion in not considering and granting SRP's second motion for summary judgment.
The following facts are undisputed. On September 19, 1991, Kevin Paul Shoemaker, age six, was playing with two other boys in a SRP canal. He apparently lost his footing, floated downstream approximately fifty-eight feet, and drowned in a sixty-foot long enclosed culvert, approximately three and one-half feet in diameter, under Industrial Avenue in Chandler, Arizona. Kevin's body was recovered from inside the culvert by a diver in scuba gear.
According to SRP written policy, a culvert of less than 100 feet in length did not require a trashrack or grate at the entrance unless "safety considerations justify a trashrack-headwall to prevent people from entering into the conduit." Under this policy, SRP did not consider a trashrack necessary for safety reasons unless the culvert was obstructed by a water delivery structure that prevented an object from freely passing through the culvert. For example, the culvert downstream from Industrial Avenue--which is less than 100 feet in length--houses a turnout structure obstructing the exit from the culvert. Consequently, it has a trashrack installed at the inlet. Because the culvert under Industrial Avenue contained no such obstruction, under SRP's policy a trashrack was not required at the entrance.
Plaintiffs' expert established by affidavit that concrete canals, such as the lateral where the drowning occurred, are extremely hazardous. He concluded that the SRP canal where Kevin drowned did not meet the 1971 Bureau of Reclamation design standards. The side slopes of the canal were made of concrete and were very steep, which would prevent a person from climbing out of the canal. Furthermore, according to plaintiffs' expert, the canal was devoid of safety measures recommended by the bureau. Specifically, the expert concluded that SRP could have "mitigated" the hazard to trespassing children either by replacing the open lateral with cast-in-place concrete pipe or by the installation of fencing to prevent access to the lateral. Alternatively, the affidavit of plaintiffs' expert established that SRP could have made the canal safer by installing ladders, cables and floats, nets, and safety screens and trash racks at the entrance to the culvert. Plaintiffs' expert estimated the cost of a trash rack to be approximately $1000.
We begin with the proposition that denial of a motion for summary judgment is not appropriate for special action jurisdiction except in very unusual cases. Ft. Lowell-NSS Ltd. Partnership v. Kelly, 166 Ariz. 96, 99-100, 800 P.2d 962, 965-66 (1990); United States v. Superior Ct., 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). Nevertheless, there are exceptions to this general rule. Accordingly, we have accepted special action review in cases where defendant has claimed judicial immunity, Lavit v. Superior Ct., 173 Ariz. 96, 97, 839 P.2d 1141, 1142 (1992); Henke v. Superior Ct., 161 Ariz. 96, 98-99, 775 P.2d 1160, 1162-63 (App.1989), because if one is "erroneously forced to stand trial, he has lost the benefit of immunity, even if he is found not liable." Henke, 161 Ariz. at 99, 775 P.2d at 1163. Consequently, a defendant who asserts an immunity has no adequate remedy at law by direct appeal after trial. Lavit, 173 Ariz. at 97, 839 P.2d at 1142.
Here, we can see little difference between the qualified common law tort immunity SRP claims under Salladay and the claim of judicial immunity in Lavit. Our supreme court has held for many years that common law tort immunity, whether absolute or qualified, protects not just from liability, but from suit. Henke, 161 Ariz. at 100, 775 P.2d at 1164. Thus, we conclude that special action relief is appropriate to enforce a claim of qualified tort immunity. See Bledsoe v. Goodfarb, 170 Ariz. 256, 266, 823 P.2d 1264, 1274 (1991) ().
Plaintiffs argue that because of the recent passage of Arizona's amended recreational use statute, A.R.S. section 33-1551, ch. 90, § 25, Ariz.Sess.Laws 265-66, this case is not appropriate for special action review. Thus, according to plaintiffs, the courts will no longer need to interpret Salladay because any case involving death or injuries resulting from SRP's operations will be determined under section 33-1551. This argument has no merit.
Section 33-1551 is intended to promote the use of vast areas of unused land for recreational purposes. Bledsoe, 170 Ariz. at 259 n. 2, 823 P.2d at 1267 n. 2. It encourages owners of private and public lands to make their property accessible to the public by providing the owners with a broad immunity from suit for injuries. A.R.S. § 33-1551(A). This broad immunity only applies, however, to suits by a "recreational user" or "educational user." Id. A "recreational user" is defined as "a person to whom permission has been granted or implied ... to travel across or to enter upon premises." A.R.S. § 33-1551(B)(3).
SRP policy, however, prohibits the recreational use of its canals and laterals. Because those who enter the canals and laterals do so without SRP's permission, they are trespassers rather than recreational users and consequently are not covered by section 33-1551. Thus, the extent and viability of the Salladay doctrine continues to be a matter of judicial interpretation notwithstanding the amendment of section 33-1551.
SRP's first motion for summary judgment was filed in August of 1992. In response to that motion, plaintiffs argued that SRP was deprived of immunity because of its "public be damned" policy. According to plaintiffs' response, as a result of SRP's failure to clean the lateral and to install a trashrack grate on the entrance to the culvert, Kevin drowned when "he became entangled in debris in the culvert." The trial court denied the motion for summary judgment. It held that conflicting inferences could be drawn from the record about whether the Salladay doctrine applied and whether SRP was deprived of immunity because it had engaged in callous conduct toward the public.
Approximately four months from the denial of the first motion for summary judgment, after engaging in additional discovery and investigation, SRP filed a second motion for summary judgment. SRP supported the second motion with uncontroverted affidavits that no obstruction existed in the culvert that could have impeded Kevin's passage through it and that Kevin did not, as plaintiffs claimed, become "entangled in debris." SRP also produced uncontroverted evidence that by memo dated July 8, 1987, it adopted a policy requiring trashracks in short culverts "where safety considerations justify [them]," and that, after the drowning, it had rejected an internal suggestion to modify this safety policy. Nevertheless, the trial court denied the second motion, holding that it was an unauthorized "horizontal appeal" and not within the exception announced in Autonumerics, Inc. v. Bayer Indus., Inc., 144 Ariz. 181, 185, 696 P.2d 1330, 1334 (App.1984). We disagree.
After denial of a motion for summary judgment, a second motion is unauthorized when no new discovery...
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