[82 Ariz. 113] McCarty, Chandler & Udall, Tucson, for appellants.
Harold R. Neubauer, City Atty., Gerald B. Hirsch and Tom Allin, Jr., Asst. City Attys., Tucson, for appellee.
McCARTHY, Superior Court Judge.
This is an appeal by plaintiffs-appellants from a summary judgment in favor of defendant-appellee, holding under the undisputed facts that the city owed no duty to plaintiffs for personal injuries alleged to have been proximately caused by the claimed negligence of the city in the construction and maintenance of one of its streets.
The facts may be summarized as follows: On September 8, 1953, at approximately 4:30 a. m., the plaintiffs were riding as passengers in a motor vehicle being driven and owned by one Robert Ambro. Ambro and his wife are named as co-defendants with the City of Tucson in the complaint filed in the Superior Court, but are not parties to this appeal. The injuries of which plaintiffs complain occurred when the automobile was driven across the intersection of West Congress Street and the Freeway located within the city limits of Tucson. The alleged cause of the injuries were two dips constructed parallel to and along the edge of West Congress Street at this intersection, the alleged dangerous condition existing as to cars traveling on the Freeway being required to enter one dip, pass over the crown or rise in Congress Street, and then into the other dip.
The complaint alleges that the city negligently constructed, maintained and negligently failed to give adequate warning of the above dangerous condition, and further that the city, acting through its engineers, negligently approved and permitted the construction of the known dangerous condiction, and that the said negligence was the proximate cause of their injuries.
The basis of the city's motion for summary judgment was that the intersection in question, although within the city limits, was a part of the state highway system of Arizona, and under the exclusive jurisdiction and control of the State of Arizona, and, having no duty therein, the city could not be negligent and was entitled to judgment as a matter of law.
The affidavits, exhibits and other documents relating to the motion for summary judgment show the following events to have transpired: On the 8th day of August, 1950, after proper resolutions therefor, the State of Arizona, acting through the state highway department, and the City of Tucson entered into an agreement as provided by section 59-205, A.C.A.1939, section 18-156, A.R.S.1956, wherein the project named the Tucson Controlled Access Highway within the Tucson city limits would be considered and deemed to be a state highway. This agreement further provided that after the [82 Ariz. 114] completion and opening of the project the State of Arizona would assume jurisdiction, control over and responsibility for maintenance of the highway, and that the city, upon receiving notice from the state that the project had been completed and opened to public travel, would assume jurisdiction, control over and responsibility for the maintenance of frontage roads, streets and connections, to include sweeping and cleaning, traffic signals and lighting.
Attached to the above agreement, and as a part thereof, was a general memorandum concerning maintenance and other matters which define maintenance, as follows:
'a. The preservation and keeping of the rights-of-way, and each type of roadway, structure and facility, in the safe and usable condition to which it has been improved or constructed, but does not include reconstruction or other improvement.'
At the time of the accident the frontage roads were paved, and that portion of the
frontage or access road at the intersection of Congress and the Freeway where the accident occurred had been completed and opened to public travel. The main highway to be located between the frontage roads was still under construction. The frontage roads are the outer or access roads which are within the boundaries of the right-of-way of the highway, and run parallel to and connect with the main highway.
Prior to the accident the city entered into an agreement with the State of Arizona to install temporary traffic signals at the intersection involved. The city agreed to furnish labor, equipment and tools necessary to install the signal and pay its share of the cost of the traffic signal, the work to proceed under the direction of the state highway electrician. The city further agreed to provide funds for the maintenance of such signal, the state in return agreeing to supply the necessary electrical materials and apparatus and the supervisory state highway electrician. This traffic signal was so constructed and in operation at the time of the accident. The city also had erected speed panels and painted some appropriate lines with the word 'Slow' near the intersection, swept the streets involved, and made minor repairs thereon. The city, prior to the accident, had corresponded with the state highway department about the dangerous hazard of the double dips, requesting their removal. After the accident the city participated in the reconstruction of the dips by furnishing some engineering services for that purpose, the state doing all the supervisory and construction work. The plan, design, construction and engineering of the whole project was under the sole control and jurisdiction of the state highway department.
The plaintiffs, by proper assignments of error and propositions of law, contend that the lower court erred in granting defendant [82 Ariz. 115] city's motion for summary judgment, for the reason that a municipality is liable to the public for injuries sustained as a result of the negligence of the municipality in failing to keep its streets in a reasonably safe condition for public travel, and the fact that a state highway department takes over a city street as a link in a state highway chain does not relieve the city of this liability for the reason that the primary duty of the city to keep its streets reasonably safe for public travel may not be delegated to another. From this premise the plaintiffs contend that the allegations of negligence and damage in their complaint, which were denied in defendant's answer, are triable issues of material fact and thus not subject to summary judgment.
In Arizona, as in most jurisdictions, it is the duty of a municipality to exercise ordinary care to keep its streets in a condition of reasonable safety for the use of the public. This duty is generally regarded as ministerial and corporate, and for a neglect to perform it the nunicipality may become liable for resulting injuries. City of Phoenix v. ...