Tobel v. State, Arizona Dept. of Public Safety

• Decision Date: 10 June 1997
• Docket Number: CA-CV,No. 1,1
• Citation: 189 Ariz. 168,939 P.2d 801
• Parties: , 245 Ariz. Adv. Rep. 11 Antone Lee TOBEL and Judy Tobel, Plaintiffs-Appellants, v. STATE of Arizona, ARIZONA DEPARTMENT OF PUBLIC SAFETY, City of Tempe, a municipality, Defendants-Appellees. 96-0325.
• Court: Arizona Court of Appeals

Page 801

939 P.2d 801

189 Ariz. 168, 245 Ariz. Adv. Rep. 11

Antone Lee TOBEL and Judy Tobel, Plaintiffs-Appellants, v. STATE of Arizona, ARIZONA DEPARTMENT OF PUBLIC SAFETY, City of Tempe, a municipality, Defendants-Appellees.

No. 1 CA-CV 96-0325.

Court of Appeals of Arizona,

Division 1, Department C.

June 10, 1997.

[189 Ariz. 169] Charles M. Brewer, Ltd. by Mark O'Connor and Luis P. Guerra, Phoenix, for Plaintiffs-Appellants.

Grant Woods, Attorney General by John E. Wolfinger, Assistant Attorney General, Phoenix, for Defendant-Appellee State of Arizona.

David R. Merkel, City Attorney by Ronald L. Dunham and Marlene A. Maerowitz, Assistant City Attorneys, Tempe, for Defendant-Appellee City of Tempe.

OPINION

THOMPSON, Presiding Judge.

Plaintiffs, Antone and Judy Tobel, ¹ appeal the grant of summary judgment in favor of defendants, City of Tempe (City), State of Arizona (State), and Arizona Department of Public Safety (DPS) (collectively defendants). We conclude that questions of fact exist as to whether defendants breached the duty of care and as to whether Tobel acted with due regard for his own safety. Accordingly, we hold that summary judgment was improperly granted.

FACTUAL AND PROCEDURAL BACKGROUND

On the night before the accident in question, DPS responded to an automobile accident on the westbound U.S. 60 freeway, near Mill Avenue. DPS requested that the Tempe Police Department assist in preventing traffic from entering the freeway from the westbound Mill Avenue on-ramp. Tempe Police Officers White and Holdinsky closed the westbound U.S. 60 Mill Avenue on-ramp and the left-turn lane of northbound Mill Avenue using barricades that were being stored on the east sidewalk of Mill Avenue for use during a construction project.

At the end of their shift, Officers White and Holdinsky spoke with a DPS officer who had arrived to assume traffic control duties on Mill Avenue. The DPS officer asked the Tempe officers to leave the barricades in place and assured them that DPS would remove the barricades once the accident investigation was complete.

At about 7:00 the next morning, Tobel's employer, Barricade & Light, Inc., dispatched him to respond to an emergency condition on Mill Avenue. Tobel arrived to remove the barricades and parked his flatbed truck in the closed left-turn lane, with its flashing lights operating. Tobel attempted to lay the barricades on the center median, but it was not wide enough, so he decided to carry the barricades to the east sidewalk of Mill Avenue. Tobel walked between two cars stopped in the northbound high-speed lane. He stopped at the striped line and looked before stepping into the curb lane. As he stepped into the curb lane, Tobel was hit by a truck driven by Tina Rutledge.

Plaintiffs filed this action against defendants for their alleged negligence in establishing an improper lane closure and abandoning that lane closure after the traffic accident investigation was complete. Defendants filed separate motions for summary judgment. City argued that its officers acted reasonably and, therefore, did not breach any duty. Defendants argued that Tobel acted unreasonably in stepping out into traffic and therefore his injuries were unforeseeable and they are not liable for such unforeseen risks. Defendants also argued that Tobel proximately caused his own injuries.

Plaintiffs offered affidavits from a law enforcement expert, Robert Feliciano, and a traffic engineering expert, Harry Krueper, who stated that defendants created a dangerous condition by abandoning the barricades and should have removed the barricades immediately after the accident investigation was complete. Plaintiffs' experts also stated that the lane closure did not comply with the applicable standards because it was improperly tapered and failed to provide advance warnings of the unexpected closure. Plaintiffs argued that these experts' opinions presented a question of fact as to whether defendants breached their duty of care. Plaintiffs also claimed that Coburn v. City of Tucson, 143 Ariz. 50, 691 P.2d 1078 (1984), and Church of Jesus Christ of Latter Day Saints v. Superior Court, 148 Ariz. 261, 714 P.2d 431 (App.1985) (hereinafter Church ), were not dispositive because the parties disputed whether Tobel followed the rules of the road. Tobel testified that he looked before stepping into the curb lane, and claimed that even if he did not look, he would have been exempt from the usual rules as a highway worker pursuant to Ariz.Rev.Stat. Ann. (A.R.S.) § 28-623(B).

The trial court found that Tobel did not look before he stepped into the curb lane and, consequently, that he failed to obey the rules of the road. The trial court concluded that it was bound by Coburn and Church, which held that although there is a duty to keep the streets reasonably safe for travel, there is no breach of that duty as to travelers who do not follow the usual rules of the road. The court also rejected Tobel's claim that A.R.S. § 28-623(B) exempted him from the traffic statutes. The court found defendants did not breach any duty and entered summary judgment.

Plaintiffs timely filed a notice of appeal from the final judgment in favor of defendants. We have jurisdiction pursuant to A.R.S. § 12-2101(B).

DISCUSSION

A trial court may enter summary judgment when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Do v. Farmers Ins. Co. of Arizona, 171 Ariz. 113, 115, 828 P.2d 1254, 1256 (App.1991). Summary judgment is appropriate where "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 reviewing a grant of summary judgment, we view the evidence in the light most favorable to the party opposing the motion, and give all favorable inferences fairly arising from the evidence to that party. Do, 171 Ariz. at 115, 828 P.2d at 1256.

Defendants argue that plaintiffs failed to submit a statement specifying which of defendants' facts were disputed as required by Uniform Rules of Practice of the Superior Court (Unif. R.P.) IV(f). Plaintiffs' statements of fact in response to both defendants' motions "denied" certain paragraphs. We find this sufficiently specifies which facts plaintiffs "dispute" under Rule IV(f), Unif. R. P.

I. Defendants' Duty of Care and Breach

Defendants have a duty to keep the streets reasonably safe for travel. Coburn, 143 Ariz. at 52, 691 P.2d at 1080. "What is 'reasonably safe' takes into consideration certain minimal expectations that travelers follow the usual rules of the road." Id. at 54, 691 P.2d at 1082.

Plaintiffs presented evidence that the lane closure fell below the applicable standard of care and caused a dangerous condition to exist. Harry Krueper, plaintiffs' traffic engineering expert, opined that the lane closure failed to provide motorists adequate warning of the unexpected lane closure, failed to provide adequate tapering, and did not comply with the City of Phoenix Traffic Barricade Manual and the Manual on Uniform Traffic Control Devices, which set forth the applicable standards. Krueper's affidavit stated that because of the lack of advance warnings motorists were unable to adequately perceive, react, and respond to the unexpected lane closure and that this problem was compounded by the morning rush hour traffic. Krueper also stated that the lane closure created unexpected and sudden stalled traffic on Mill Avenue, around which motorists would attempt to maneuver or avoid. The closure caused a dangerous road condition to exist, which distracted the attention of motorists, including Rutledge, the driver of the truck that hit Tobel, and made her "unable to perceive, respond and react effectively to [Tobel]."

Plaintiffs' law enforcement expert, Robert Feliciano, agreed that the lane closure failed to provide adequate warning and created a dangerous condition which caused Rutledge to be unable to perceive and react to Tobel's presence. Both of these opinions were uncontroverted.

Plaintiffs also established through their experts' affidavits that defendants improperly abandoned the barricades after the accident investigation was complete. Tempe police officers are responsible for traffic accident scene management, which includes clearing the scene before the investigating officer leaves, or if it is impossible to clear the scene, "officers will take all necessary precautions to safeguard the public." Tempe Police Officer Holdinsky testified at his deposition that unattended lane closures cause congestion, which can create traffic hazards. Officer White stated that Tempe Police procedures require the removal of lane closures immediately after an accident investigation is completed. This evidence was also uncontroverted.

"Where ... evidence is offered from which the fact-finder could reasonably conclude that the public agency or jurisdiction should have foreseen a danger to plaintiff from the negligent or inattentive conduct of plaintiff or of another, then the question of the county's negligence is one for the jury." Dunham v. Pima County, 161 Ariz. 304, 306, 778 P.2d 1200, 1202 (1989) (citation omitted); see also Beach v. City of Phoenix, 136 Ariz. 601, 604, 667 P.2d 1316, 1319 (1983) (where it appears from the evidence that reasonable people could differ as to whether injury is foreseeable, the question of negligence is one of fact for a jury). The uncontroverted affidavits of plaintiffs' experts establish that the lane closure was improper and created a dangerous condition. The evidence also established that the abandonment of the lane closure was against Tempe Police policy and also fell below the standard of care.

Keeping in mind that plaintiffs are entitled to all favorable inferences...