Jean A. WISENER and Joanne Wisener, husband and wife, and surviving parents of Mark Arthur Wisener, Deceased, Appellants,
STATE of Arizona, Appellee.
[123 Ariz. 149] O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P. C., by Richard McC. Shannon, P. Michael Whipple, Phoenix, for appellants.
Robert K. Corbin, Atty. Gen., Bruce E. Babbitt, former Atty. Gen., Phoenix, Jones, Teilborg, Sanders, Haga, Parks & Stephenson, by James A. Teilborg, Linda A. Drake, James R. Broening, Special Asst. Attys. Gen., Phoenix, for appellee.
This is an appeal from a judgment of the Superior Court granting the State of Arizona's motion for summary judgment against Jean and Joanne Wisener, the surviving parents of Mark Arthur Wisener, deceased. Taking jurisdiction pursuant to 17A A.R.S., Arizona Rules of Civil Appellate Procedure, rule 19(e), we reverse the judgment of the Superior Court.
This action arises out of a one car accident that occurred on March 18, 1973 at approximately 10 p. m. on Interstate 8, approximately fourteen miles east of Dateland, Arizona. Appellants' son, Mark Wisener, was driving west on the interstate with a passenger when he came upon a cow in the roadway. He swerved to avoid the animal. His car overturned, and he died shortly thereafter from the injuries he sustained.
Land in the vicinity of Interstate 8 was being used for grazing, and the State of Arizona had erected access control fences along the highway at the site of the accident. Appellants' complaint alleges negligent design, construction and maintenance of the state fencing.
J. D. Dutton, Inc., hereinafter referred to as Dutton, was constructing a rest area for the State, on Interstate 8 near the site of the accident. The company had done some relocating of the state's fencing to encircle its construction site and had built temporary access gates and a cattle guard. Several weeks before this accident, cattle had gained access to the interstate, allegedly because of Dutton's negligence in leaving one of its gates open. The depositions in this case, however, reveal no indication that negligence on the part of Dutton provided access to the interstate for the cow that Mark Wisener swerved to miss.
Appellants' complaint named both the State of Arizona and Dutton as defendants. Dutton's motion for summary judgment, however, was granted by the trial court, and affirmed in a memorandum decision of the Court of Appeals. The subsequent granting of a similar motion made by the State of Arizona is the subject of this appeal.
In reviewing the granting of a summary judgment, the evidence must be viewed in a light most favorable to the losing party, with that party being given the benefit of all favorable inferences that may be reasonably drawn from the evidence. If, when viewed in this manner, reasonable men could reach different conclusions as to whether there is a genuine issue as to any material fact, the judgment must be reversed. Livingston v. Citizen's Utility, Inc., 107 Ariz. 62, 481 P.2d 855 (1971). That is to say, the litigants are entitled to a trial when there is the slightest doubt as to the essential facts. Geiler v. Arizona Bank, 24 Ariz.App. 266, 537 P.2d 994 (1975).
Appellee, the State of Arizona, contends that even if all factual discrepancies are resolved in appellants' favor, the appellants fail, as a matter of law, to prove negligence on the part of the state. The elements of actionable negligence are a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach. Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977).
Initially, the state asserts that summary judgment was proper, because the evidence fails to show that the ...