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 state owed a [123 Ariz. 150]
duty to the decedent, because the state never received adequate notice that cattle were escaping onto the interstate due to a defect in the state's fencing. The standard of care required of the State in keeping its highways safe is the same as that of a municipality. Delarosa v. State,21 Ariz.App. 263, 518 P.2d 582 (1974). The standard of care imposed upon a municipality is that of an ordinarily prudent man. It is bound to keep its streets reasonably safe for travel, but it is not an insurer of those who travel thereon. Phoenix v. Clem, 28 Ariz. 315, 237 P. 168 (1925). For a municipality to be liable for a failure to repair, it must have first received actual or constructive notice of the defect. Phoenix v. Williams, 89 Ariz. 299, 361 P.2d 651 (1961). However, if the city itself caused the defect, Vegodsky v. Tucson, 1 Ariz.App. 102, 399 P.2d 723 (1965), or if the repairs or improvements were defective when made, Clem, supra, notice of the defects is not a prerequisite to holding the municipality liable.
Appellants' complaint asserts that not only was the state negligent in maintaining its highway fences, but also that the fences were negligently designed and constructed. These latter two contentions are supported by the affidavit of James Deatherage, a consulting engineer who examined the highway fencing conditions at the site of the accident and the state's plans and drawings with respect to the design and construction of these same fences. Mr. Deatherage's affidavit asserts that the state did not construct fencing in the manner prescribed by the plans and that consequently construction fell below an acceptable standard of care. He also asserts that the state's fencing did not meet the definition of a lawful fence, pursuant to A.R.S. § 24-501, and was not constructed in accordance with acceptable construction standards.
The state has made no efforts to challenge the affidavit of this expert witness. Because it can be inferred from Mr. Deatherage's affidavit that the state was negligent in its design and construction of highway fencing, we need not consider whether the state received adequate notice of the defect. The record adequately supports appellant's contention that the state owed a duty to their decedent, without benefit of notice of the defective fencing. Clem, supra; Vegodsky, supra.
The state also asserts that summary judgment was proper, because even with all factual discrepancies resolved in appellants' favor, appellants are unable to prove causation. That is to say, the state argues that summary judgment was proper, because appellants cannot ...