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Goss v. City of Globe9/22/1994
ESPINOSA, Presiding Judge.
Brian Goss fell off of a low wall into a drainage ditch, was rendered quadriplegic, and allegedly died because of respiratory complications related to the paralysis. His wife brought a wrongful death action against the City of Globe (the City) on behalf of herself and others entitled to recover under A.R.S. § 12-611, et seq. The issue raised in this appeal is whether the trial court correctly granted summary judgment in favor of the City after concluding that it is absolutely immune under title 12, chapter 7, article 2 of the Arizona Revised Statutes, (Actions Against Public Entities or Employees Act), and specifically A.R.S. § 12-820.01. That issue, as involving interpretation of the statute, is a question of law, see Walls v. Arizona Department of Public Safety, 170 Ariz. 591, 826 P.2d 1217 (App. 1991), which we review de novo. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 412 P.2d 47 (1966).
Goss fell backwards from a sitting position into a drainage ditch adjacent to a retaining wall abutting Cottonwood Street. The retaining wall was part of a roadway construction project in the 1930's and was built to separate pedestrians from the drainage ditch. According to the affidavit of the City Manager attached to the motion for summary judgment, the wall, located on the northwest side of Cottonwood Street at the intersection of Cottonwood and Sutherland, was erected sometime between 1935 and 1938. The plaintiffs alleged in their complaint that the City "was negligent in the creation, design, construction, maintenance, and upkeep with respect to the low concrete wall . . . ." Relying on the opinion of a traffic engineering expert, the plaintiffs contend on appeal, without citation to the record, as they did below, that the location was hazardous because there were no sidewalks on Cottonwood Street nor a pedestrian railing separating the drainage ditch from the roadway. They also claim that the depth of the ditch was hidden from view by tree overgrowth.
Although the trial court did not specify the ground upon which it granted the City's motion, it appears to have been based primarily on § 12-820.01 which provides in pertinent part:
A. A public entity shall not be liable for acts and omissions of its employees constituting:
2. The exercise of an administrative function involving the determination of fundamental governmental policy.
3. The determination of a fundamental governmental policy involves the exercise of discretion and shall include, but is not limited to:
1. A determination of whether to seek or whether to provide the resources necessary for:
(a) The purchase of equipment,
(b) The construction or maintenance of facilities,
(c) The hiring of personnel, or
(d) The provision of governmental services.
2. A determination of whether and how to spend existing resources, including those allocated for equipment, facilities and personnel.
(Emphasis added.) The word "facilities" is not defined in the Act. Its dictionary definition is "something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function." Webster's Third New International Dictionary, 812-13 (1971). This definition is broad enough to include the retaining wall, sidewalks or guardrails. Maintenance is defined in the statute as "the establishment or continuation in ex
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