State v. Watson

• Citation: 436 P.2d 175,7 Ariz.App. 81
• Decision Date: 29 December 1967
• Docket Number: No. 2,CA-CIV,2
• Parties: STATE of Arizona, the Arizona Highway Commission, the State Highway Engineer and Deputy State Highway Engineer, Appellants and Cross Appellees, v. J. M. WATSON, surviving spouse of Betty Jane Watson, Deceased, for the benefit of himself and minor children and as parent and father of Charm Watson, Deceased, a Minor, Appellee and Cross Appellant, and James M. Watson, Jr., by and through his next friend, J. M. Watson, William Hansen, by and through his next friend, Fred A. Hansen, Fred A. Hansen and Nellie Hansen, his wife, and Robert D. Wilson, by his quardian ad litem, Troyce Wilson, and Troyce Wilson, Appellees. 297.
• Court: Court of Appeals of Arizona

Page 175

436 P.2d 175

7 Ariz.App. 81

STATE of Arizona, the Arizona Highway Commission, the State Highway Engineer and Deputy State Highway Engineer, Appellants and Cross Appellees, v. J. M. WATSON, surviving spouse of Betty Jane Watson, Deceased, for the benefit of himself and minor children and as parent and father of Charm Watson, Deceased, a Minor, Appellee and Cross Appellant, and James M. Watson, Jr., by and through his next friend, J. M. Watson, William Hansen, by and through his next friend, Fred A. Hansen, Fred A. Hansen and Nellie Hansen, his wife, and Robert D. Wilson, by his quardian ad litem, Troyce Wilson, and Troyce Wilson, Appellees.

No. 2 CA-CIV 297.

Court of Appeals of Arizona.

Dec. 29, 1967.

Rehearing Denied Jan. 24, 1968.

Review Denied March 5, 1968.

Darrell F. Smith, Atty. Gen., Peter C. Gulatto, Asst. Atty. Gen., for appellants and cross appellees.

Stockton & Hing, by Robert O. Hing and William J. Knudsen, Jr., Phoenix, for appellees Watson and Hansen and cross appellant.

Mackenzie, Scott, Bolze, Weltsch & Moroney, by Albert H. Mackenzie, Phoenix, for appellees Wilson.

MOLLOY, Judge.

This is an appeal and a cross appeal from certain judgments rendered against the State of Arizona for negligence allegedly arising from the construction and maintenance of a narrow bridge on an interstate highway and the failure to post appropriate warning devices on this bridge.

The bridge in question is located on US Highway 60, one mile west of Florence Junction over Queen Creek. The highway in question at the time of the accident was a two-lane highway, with one lane of traffic running east and one west. To the east of the bridge, the traveled portion of the highway was wider than the bridge. There was evidence that the highway up until 100 feet east of the bridge was between 36 and 40 feet wide and that it tapered down in the ensuing distance to the 24 1/2 feet width of the bridge. The bridge has concrete abutments approximately 3 feet high on both sides. There was no 'narrow bridge' or other sign warning traffic coming from the east of any hazard at this bridge. Near the eastern abutment of the bridge, on the right-hand side of the road, there were two metal reflectors, but these were set back to the right side of the abutment, a distance of approximately 2 1/2 feet. The abutment of the bridge itself was not striped nor marked with reflectors. There were no lines painted on the pavement to denote a narrowing of the road nor were there any guard rails at the approach to the bridge. The bridge was not lighted.

At approximately 11:20 p.m., on the night of the accident, a westbound vehicle driven by one Williamson hit the eastern abutment of the bridge a glancing blow and bounced into the eastbound lane where, in the middle of the bridge, it collided head-on with an eastbound car driven by Betty Jane Watson. In the car driven by Mrs. Watson, there was one other adult and six children as passengers. Both drivers and one of the children, Charm Watson, died as a result of the accident.

This action concerns the wrongful death claims pertaining to the death of Mrs. Watson and Charm Watson, brought by J. M. Watson as surviving spouse and father, and the personal injury actions of the adult passenger, and of three of the minors who were injured in the accident. A jury verdict was rendered below in favor of all of the plaintiffs and against the defendant. There is no question as to the amounts of these verdicts presented on appeal, with the exception of the verdicts rendered in favor of J. M. Watson as surviving spouse and father. These are attacked in the cross appeal as being grossly inadequate.

The first contention made by the State as to why all judgments should be reversed is that the trial court held the defendant to a 'greater duty other than to maintain the highway reasonably safe for travel.' Under this section of its brief, the State argues there was not sufficient evidence for the jury to have found that the situation created by the State at the Queen Creek Bridge was not reasonably safe for travel. An examination of the record convinces us to the contrary.

The Manual of Uniform Traffic Control Devices published by the Public Roads Administration of the United States Government, August 1948 edition, was admitted in evidence without objection. This manual required a 'narrow bridge' warning sign for all bridges 'having a roadway clearance less than the width of the approach pavement.' ¹ This manual also requires that all culvert headwalls be marked with a 'diagonal stripe design' of alternating black and white paint ² and that hazard markers be mounted 'on or immediately in advance of obstructions * * * to indicate the presence of hazards.' ³ All of these safety rules were violated in connection with the approach to this bridge. There was testimony from a traffic-control engineer, given without objection, that the failure to post warning signs and reflectors in connection with this bridge 'constituted a serious hazard to motorists traveling on that highway.'

Since the decision of Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), the State is held liable for its negligence in the maintenance of highways. While Stone does not expressly set forth the standard of care to which the State is obligated, we have numerous decisions in this jurisdiction declaring the standard of care owed by a municipality. We see no reason to apply a different standard to the State than to a municipality. We find sufficient evidence to go to the jury on the question of whether the State failed to maintain this particular highway in a reasonably safe condition. City of Phoenix v. Camfield, 97 Ariz. 316, 400 P.2d 115 (1965).

The State also argues obliquely under this section of its brief that the decision as to what highway warning signs are to be posted is a 'discretionary' power vested in the State under A.R.S. § 28--642, subsec. A, ⁴ and that it therefore has immunity from liability for its decisions in this regard. The statute in question does require the Commission to place such traffic-control devices 'as it deems necessary' to warn or to guide traffic. However, we see no intent in this statute to grant an immunity to the State. While we recognize the power of the State to grant immunity to itself or its subdivisions as to tort liability, Turner v. Superior Court, 3 Ariz.App. 414, 415 P.2d 129 (1966), if it wishes to exercise its sovereign powers in this regard, it must spell out its intent. The granting of immunity from a common right will not be lightly implied. See 50 Am.Jur. Statutes § 398, at 422--23; 82 C.J.S. Statutes § 393, at pp. 938--939.

Nor do we see any 'common law' immunity such as was found by the Supreme Court of Washington to be reposed in the State against a charge of negligence in selecting the type of custodial care to be provided delinquents. Evangelical United Breth. Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). In that case, the Washington Supreme Court found that decisions made by the State as to the type of institutions that would be provided delinquents '* * * are not unlike those called for in the legislative and judicial processes of government.' 407 P.2d at 447. This opinion carries with it a strong dissent. The majority recognize that the State would be liable if it negligently failed to report to law-enforcement officials the runaway of a dangerous delinquent, providing such failure to report were the proximate cause of injury. This type of function is labeled by the court as "operational," "ministerial," or "housekeeping" (407 P.2d at 447). We would speculate that even the majority of the court in Washington would regard the posting of proper warning devices at a narrow bridge to be 'ministerial,' and not within the immunity established by this decision.

The next attack of the State is directed at the alleged lack of connection between the failure to give warning as to this bridge and the accident which resulted in the plaintiffs' injuries. This argument revolves largely around the fact that when Williamson was taken from his car, there was the odor of alcohol on his breath. It is contended that his negligence was the superseding cause of this accident and that this court should rule as a matter of law that any negligence of the State could not have been a cause of the plaintiffs' injuries.

The negligence of the State need not be the only cause of this accident. It is sufficient if it is One of the proximate causes. Beltran v. Stroud, 63 Ariz. 249, 254, 160 P.2d 765, 767 (1945). An intervening cause is not a superseding cause, so as to give immunity to a defendant whose negligence occurred before the intervening event, if the first tort feasor should reasonably have foreseen the risk entailed in the possibility of the subsequent conduct. MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958); City of Phoenix v. Schroeder, 1 Ariz.App. 510, 405 P.2d 301 (1965).

That all drivers upon our highways are not completely sober and wide-awake is an unfortunate but notorious fact. Alert drivers in large numbers negotiated Queen Creek Bridge on this night and on many other nights sans warning devices and sans accident. But, it is certainly foreseeable that occasionally a marginally alert, or worse, driver would travel this highway and come to this bridge at a time when the lights of an oncoming car would make it difficult to appreciate that there was a concrete abutment 100 feet directly ahead in a traveled portion of the highway. With no warning sign being posted to warn approaching drivers of this situation and without reflective devices on that portion of this abutment presenting the most danger, it is understandable that an accident such as this has occasionally occurred at this bridge. ⁵ We hold there was a question of fact for the jury to determine as to whether any negligence of the State was a proximate cause of this accident. City of...