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Nelson v. Grayhawk Properties12/22/2004
Plaintiffs-appellants Robert and Lori Nelson appeal from the trial court's grant of summary judgment to defendants-appellees Grayhawk Properties, L.L.C.; Grayhawk Development, Inc.; and Grayhawk Residential, Inc. (Grayhawk), finding that the City of Scottsdale (Scottsdale) had a non-delegable duty to safely maintain its roadways. For the following reasons, we reverse and remand.
FACTUAL AND PROCEDURAL HISTORY
This case arises from an automobile accident in March 1999 at the intersection of Thompson Peak Parkway and 76th Street in an area of North Scottsdale developed by Grayhawk. At issue is whether Scottsdale or Grayhawk had a duty to maintain that intersection. In order to obtain approval to develop land for residential and commercial use, Grayhawk was required to dedicate a right-of-way to Scottsdale. After dedication of the right-ofway, Grayhawk was required to pay for, and ensure completion of, the design and construction of roadways and related improvements. Grayhawk also continued to be responsible for maintaining the landscaping after the dedication of the right-of-way.
In December 1996, Thompson Peak Parkway was opened and dedicated for use by Scottsdale. At that time, the median landscaping had not been installed at the intersection of Thompson Peak Parkway and 76th Street, and there was no traffic signal. Grayhawk obtained landscaping plans for the intersection of Thompson Peak Parkway and 76th Street. The landscaping plans contemplated that the intersection would be controlled by a traffic signal. The plan was submitted to Scottsdale for approval. Grayhawk installed the median landscaping in 1997, before the completion of installation of traffic signals in 1999.
In March 1999, the traffic signals were not yet activated at this intersection, although there was a stop sign on 76th Street south of Thompson Peak Parkway. A northbound driver on 76th Street attempted to turn left onto Thompson Peak Parkway after stopping at the stop sign. Allegedly sight-obscuring landscaping prevented the driver and Robert Nelson, who was approaching from the east on a motorcycle, from seeing each other. The two vehicles collided, resulting in injury to Nelson.
The Nelsons sued Grayhawk for the allegedly negligent installation and maintenance of the median landscaping at Thompson Peak Parkway around the intersection of 76th Street. According to the Nelsons, there was an obstructed view at the intersection and no operational traffic signals, which created an unreasonably dangerous condition. Grayhawk moved for summary judgment, claiming that (1) it owed no duty to the Nelsons, and (2) Scotttsdale's non-delegable duty to keep the roadway safe made Scottsdale solely responsible for any negligence, even that of an independent contractor. The Nelsons responded that (1) Grayhawk had a duty to safely improve and maintain the roadway after it dedicated the right-of-way, and (2) Scottsdale's non-delegable duty did not immunize Grayhawk from liability for its own negligence under Wiggs v. City of Phoenix (Wiggs II), 198 Ariz. 367, 10 P.3d 625 (2000). The Nelsons also cross-moved for summary judgment, arguing that Grayhawk had a non-delegable duty to construct and improve the intersection. The trial court granted summary judgment to Grayhawk, relying on Wiggs II, and the Nelsons timely appealed.
DISCUSSION
We review the trial court's grant of summary judgment de novo and view the evidence and reasonable inferences in the light most favorable to the non-moving party. Aranki v. RKP Invs., Inc., 194 Ariz. 206, 208, 6, 979 P.2d 534, 536 (App. 1999) (citations omitted).
The Nelsons assert that a negligent contr
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