Sanchez v. City of Tucson

• Decision Date: 05 February 1998
• Docket Number: No. CV-97-0134-PR,CV-97-0134-PR
• Citation: 191 Ariz. 128,953 P.2d 168
• Parties: , 262 Ariz. Adv. Rep. 3 Jose SANCHEZ, a minor child, By and Through his guardian ad litem, Craig GORDON; Teresa E. Barocio; Daniel Sanchez, Plaintiffs/Appellants. v. The CITY OF TUCSON, a political entity, Defendant/Appellee.
• Court: Arizona Supreme Court

Page 168

953 P.2d 168

191 Ariz. 128, 262 Ariz. Adv. Rep. 3

Jose SANCHEZ, a minor child, By and Through his guardian ad litem, Craig GORDON; Teresa E. Barocio; Daniel Sanchez, Plaintiffs/Appellants. v. The CITY OF TUCSON, a political entity, Defendant/Appellee.

No. CV-97-0134-PR.

Supreme Court of Arizona,

En Banc.

Feb. 5, 1998.

Miller, Pitt & McAnally, P.C. by Thomas G. Cotter, Lindsay Brew, Tucson, for Jose Sanchez.

Lopez, Bevans & Perez-Medrano by Juan Perez-Medrano, Tucson, for Teresa E. Barocio and Daniel Sanchez.

Gabroy, Rollman & Bosse, P.C. by Richard A. Brown, Richard M. Rollman, Tucson, for City of Tucson.

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

¶1 In this negligence case, the trial court granted summary judgment to the defendant City of Tucson ("City"). The court of appeals affirmed, based on the theory that the City did not exercise control over the location where the accident occurred, and therefore owed no duty to the infant plaintiff, Jose Sanchez ("plaintiff"). Because we conclude that issues of fact exist which preclude summary judgment, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶2 On the night of March 14, 1993, Teresa Barocio, carrying her eighteen-month-old son, plaintiff Jose Sanchez, attempted to cross West Ajo Way, a state route, at its intersection with South Pandora Avenue in Tucson. They were hit by a vehicle traveling on the state route. The child was catastrophically injured and is paralyzed from the waist down.

¶3 Plaintiff sued the driver of the vehicle, the State of Arizona ("State"), and the City. This appeal involves only the claim against the City. Plaintiff asserted that the City had a duty to maintain the roadway in a reasonably safe condition and that the City breached that duty by failing to install a traffic light at the intersection.

¶4 The City moved for summary judgment, arguing that it owed no duty to plaintiff as it did not have the authority to put up traffic lights on the roadway as the roadway was a state route maintained by the State. In opposition, plaintiff argued that the facts would support a finding that the City and the State exercised joint control over the accident site, therefore imposing a duty on the City to install a traffic light at the intersection.

¶5 The City's motion for summary judgment was granted and the court of appeals affirmed. Sanchez v. City of Tucson, 189 Ariz. 429, 943 P.2d 789 (App.1997). The court of appeals relied heavily on our case of Harlan v. City of Tucson, 82 Ariz. 111, 309 P.2d 244 (1957), to conclude that a city, county or other political subdivision of the State owes no duty to prevent injury on a state route, absent an agreement with the State in which the entity assumes such a duty. The court recognized that in the instant case the State and the City had an Intergovernmental Agreement ("IGA"), which created a duty on the part of the City to provide routine and emergency maintenance on the roadway in question. Sanchez, 189 Ariz. at 431, 943 P.2d at 791. It held, however, that the IGA did not impose a duty on the City to make improvements on the roadway, such as the installation of traffic lights. Id. Further, it held that Arizona Revised Statutes (A.R.S.) § 28-627(B) prohibited the City from installing a traffic light on the roadway absent written permission from the State. Id. Accordingly, the court affirmed the summary judgment in favor of the City. We granted review and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), Ariz. R. Civ.App. P. 23, and A.R.S. § 12-120.24. ¹

ISSUE PRESENTED

¶6 Whether the City could be found to have assumed a duty to plaintiff to construct a traffic light in the area in question by virtue of its Intergovernmental Agreement with the State, its pattern of joint control over the roadway, and its authorization from the State to construct a traffic light.

DISCUSSION

I. Standard of Review

¶7 A trial judge should grant a motion for summary judgment "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). In deciding the motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 309-10, 802 P.2d at 1008-09 (quoting from Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 216 (1986) (citations omitted)). We review issues of summary judgment de novo. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App.1990).

II. The Issue

¶8 In deciding this case, we bear in mind that in negligence cases, "the rule is uniformly applied that where different inferences can be drawn from uncontroverted facts the case must be left to the jury." Beach v. City of Phoenix, 136 Ariz. 601, 604, 667 P.2d 1316, 1319 (1983) (footnote omitted). Negligence cases where "jurors might reach different conclusions from uncontroverted facts ... are generally not appropriate for summary adjudication." Mast v. Standard Oil Co. of Cal., 140 Ariz. 1, 5, 680 P.2d 137, 141 (1984) (citation omitted).

¶9 A supportable negligence action requires that the defendant owe a duty of care to the plaintiff. See Bell v. Smitty's Super Valu, Inc., 183 Ariz. 66, 68, 900 P.2d 15, 17 (App.1995). A question of duty is "to be decided by the court as a matter of law." Beach, 136 Ariz. at 604, 667 P.2d at 1319 (footnote omitted).

¶10 In Arizona, a municipality owes a duty to the public to keep its streets in a reasonably safe condition. See City of Phoenix v. Weedon, 71 Ariz. 259, 263, 226 P.2d 157, 160 (1950), Beach, 136 Ariz. at 602, 667 P.2d at 1317. In this case, if the City exercised control over the roadway in question, it would owe a duty to plaintiff to keep it in a reasonably safe condition. See Martinez v. State, 177 Ariz. 270, 271, 866 P.2d 1356, 1357 (App.1993). The issue of control or amount of control, unlike the issue of duty, is "a question of fact which ordinarily should be left to the fact finder." Lewis v. N.J. Riebe Enter., Inc., 170 Ariz. 384, 389, 825 P.2d 5, 10 (1992) (citations omitted). Therefore, whether the City exercised enough control over the roadway to have a duty to install a traffic light would generally be a question of fact for the jury.

¶11 The question before this court is whether plaintiff has provided enough factual evidence to defeat a summary judgment motion on the issue of control. Has plaintiff shown--with all of his evidence believed and all reasonable inferences drawn in his favor--that a jury could reasonably find that the City exercised sufficient control over the roadway to permit it to install a traffic light? We now examine plaintiff's argument in opposition to summary judgment.

III. Facts in Support of Plaintiff's Case

¶12 Plaintiff's argument is that the record created a factual dispute as to whether the City had exercised control over the section of road involved and had therefore assumed a duty to the public to keep the roadway reasonably safe by installing a traffic light. Plaintiff relies on the relationship between the parties, including the IGA mentioned above, to show that the City exercised control over the roadway.

¶13 Plaintiff has pointed to many acts of the City as proof of the City's control over the roadway. For the sake of brevity, we summarize what we feel to be sufficient salient facts to defeat summary judgment. Plaintiff presented a 1973 memorandum from the City's Traffic Engineer, Charles Male, to Frank Brooks, Tucson's Assistant City Manager, stating that since the roadway was a state route, any action to alleviate traffic problems reported in this stretch of road would require a "joint effort" between the City and the State to develop a "mutually satisfactory" solution. Plaintiff also presented a 1979 traffic study conducted jointly by the City and the State to show that the City exercised control over the roadway.

¶14 Moreover, in 1981, the State approved installation of a traffic light for the intersection in question. The traffic light was to be erected by the City with private funds from a developer planning to build a shopping mall in the area. The developer later declared bankruptcy and the traffic light was never installed. Although the traffic light was approved, in part, because of the expected traffic increase from the shopping mall, nothing in the record indicates either that the approval of the light was conditional on building the mall or that approval was withdrawn when the mall was not built. In other words, it is possible that the City had authority to install a traffic light where the accident occurred but chose not to do so when the private funding evaporated.

¶15 Plaintiff also relies on the IGA between the City and the State, in effect since 1983, as evidence that the City exercised some control over the roadway at the time of the accident, thereby creating a duty to keep the roadway in a reasonably safe condition. Under Arizona law, exclusive control and jurisdiction over state highways and routes is vested in the State, particularly in the Arizona Department of Transportation ("ADOT"). A.R.S. §§ 28-104(A), (B)(3) and 28-108(A)(19). The director of ADOT, however, has the power to relinquish the State's exclusive control and jurisdiction, by entering "into agreements on behalf of the State with counties, cities, towns or rural districts for the improvement or maintenance of state routes or for the joint improvement or maintenance thereof." A.R.S. § 28-108(A)(18) (as it existed on the date of the accident, see 1992 Ariz. Sess. Laws 655).

¶16 In the IGA, the City assumed responsibility for routine maintenance and operation of traffic lights and street lighting on specified intersections of state routes within the ...