Walker v. Coconino County

• Decision Date: 13 August 1970
• Docket Number: CA-CIV,No. 1,1
• Citation: 473 P.2d 472,12 Ariz.App. 547
• Parties: R. J. WALKER, Appellant, v. COUNTY OF COCONINO, a body politic, Appellee. 1059.
• Court: Arizona Court of Appeals

Page 472

473 P.2d 472

12 Ariz.App. 547

R. J. WALKER, Appellant, v. COUNTY OF COCONINO, a body politic, Appellee.

No. 1 CA-CIV 1059.

Court of Appeals of Arizona, Division 1, Department B.

Aug. 13, 1970.

Rehearing Denied Sept. 28, 1970.

Gibbons, Kinney, Tipton & Warner, by Jack C. Warner, Phoenix, for appellant.

Jennings, Strouss & Salmon, by Jon L. Kyl, Phoenix, for appellee.

JACOBSON, Judge.

The liability of a county for failing to remedy or warn of an unsafe condition upon a county highway is presented in this appeal from a directed verdict entered in the County's favor in the Superior Court of Maricopa County.

At about noon on December 12, 1964, plaintiff-appellant R. J. Walker, was traveling northward on County Highway 209 just inside the southernmost boundary of defendant-appellee Coconino County. Plaintiff, immediately after traversing a rise and as he began a downhill curve to the right, encountered a patch of ice. The ice, which was the width of the highway, extended approximately 100 yards. Plaintiff's vehicle slid on the ice, spun around, and came to rest against the right-hand embankment facing the direction from which it had come and with its front end protruding out into the northbound lane of traffic. After his passengers had disembarked and while he was attempting to drive out, another vehicle came down the hill and struck the front end of plaintiff's vehicle injuring him.

Although there possibly was a diamond shaped sign marked 'Ice' located some 8--10 miles to the south, the evidence was to the effect that there were no barricades or warnings near the accident scene and no sand, gravel, or cinders on the icy curve.

The testimony of the plaintiff and his witnesses, when viewed in the light most favorable to plaintiff, discloses that the accident occurred on a clear day and that there had been no storm in the area for at least two days prior to the day of the accident. The highway was free of moisture except for two or three other much smaller patches of ice at different spots on the highway south of the accident scene. There was, however, snow on the ground on either side of the highway, both at the accident scene and for some miles south thereof.

Plaintiff presented no evidence as to how the ice formed, how long it existed on the highway or whether the county knew or should have known of its existence. Plaintiff does not argue that the ice was anything other than a natural accumulation resulting from the elements and not caused by any negligent act of defendant.

At the close of plaintiff's case, and based on the state of the record outlined above, the trial court granted defendant's motion for a directed verdict on the ground that plaintiff had failed to prove a Prima facie case of negligence. We agree with the trial court's conclusion.

The mere fact that there was ice on a county highway and a vehicle skidded thereon does not impose liability on the county. The claimant must show facts giving rise to a duty, recognized by law, on the part of the county and a concurrent failure by the county to comply with that duty in order to establish the county's negligence. See Avechuco v. Awtrey, 106 Ariz. 44, 470 P.2d 451 (1970); Kreisman v. Thomas, 12 Ariz.App. 215, 469 P.2d 107 (1970).

There is split of authority concerning the duty of a state or any of its political subdivisions in the case of 'natural' accumulations of ice on the roadway. A natural accumulation occurs where rain or snow falls on the roadway, or runoff from thawing snow flows across the street, and subsequently freezes causing ice to form on the road. In such a case the moisture on the roadway results wholly from the elements and is not caused by any act of the governmental body.

Apparently most jurisdictions allow liability to attach where there exists simultaneously the following conditions: (1) the ice has been pushed, trampled or otherwise formed into humps or ridges or other shapes of such size and location as to constitute an obstruction or a dangerous condition apart from its original mere slipperiness, (2) such a condition is unusual in comparison with general conditions throughout the city (I.e., isolated patches), (3) either actual knowledge of the isolated icy condition exists or such condition has been allowed to remain on the street for a period of time sufficient to give rise to constructive notice on the part of the governmental body, and (4) there is a reasonable opportunity after notice to remedy the condition. Compare Jennings v. United States, 291 F.2d 880 (4th Cir. 1961), With Weisner v. Mayor and Council of Rockville, 245 Md. 225, 225 A.2d 648 (1967). Underlying the above rules is the premise that what the governmental body is required to do to off-set the danger created by the elements is that which is reasonable under the circumstances, that the applicable standard of care is that of an ordinary prudent man, and that the governmental body is not an insurer of travelers on its roadways. Weisner v. Mayor and Council of Rockville, Supra; Dodd v. State, 31 Misc.2d 112, 223 N.Y.S.2d 32 (1961).

This latter-stated general standard as applied to governmental subdivisions in the maintenance of their roadways is also the law in Arizona. City of Phoenix v. Clem, 28 Ariz. 315, 237 P. 168 (1925); State v. Watson, 7 Ariz.App. 81, 436 P.2d 175 (1968). However in the application of the above general standard to fact situations dealing with natural accumulations of ice, some courts have ruled that, As a matter of law, a governmental body is not liable for injuries proximately caused by natural accumulations of ice on its streets, regardless of notice or length of time the ice has remained on the highway and regardless of whether such condition be general or isolated where the only danger presented is the mere natural slipperiness of the ice in its natural state. See, e.g., Smith v. Dist. of Columbia, 89 U.S.App.D.C. 7, 189 F.2d 671 (1951); Commonwealth v. Brown, 346 S.W.2d 24 (Ky.App.1961). Such rulings are based on the recognition that the governmental body cannot control the falling of snow or rain and the subsequent thawing and freezing thereof, and on the propositions that it is an impracticable burden to require the...