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Goss v. City of Globe9/22/1994
carries with it "'an implicit requirement that the defendant act reasonably in light of the known and foreseeable risks.'" Ballesteros, 161 Ariz. at 627, 780 P.2d at 460 (quoting Markowitz v. Arizona Parks Board, 146 Ariz. 352, 356-57, 706 P.2d 364, 368-69 (1985)). As Division One of this court found in Bach v. State, 152 Ariz. 145, 730 P.2d 854 (1986), the duty extends beyond the roadway surface which, in that case, included construction of a nearby exposed culvert. The Bach court relied in part on City of Phoenix v. Mayfield, 41 Ariz. 537, 548, 20 P.2d 296, 300 (1933), in which our supreme court, quoting Johnson v. State, 186 A.D. 389, 391, 173 N.Y.S. 701, 703 (1919), held that a city has a duty "'to erect railings or barriers along the highway at places where they are necessary to make the highway safe and convenient for travelers in the use of ordinary care.'" See also Ballesteros, 161 Ariz. at 627, 780 P.2d at 460 (state's duty to keep its highways reasonably safe for travel "includes the duty to place proper barriers, railing, guards and/or warning signs at dangerous places on the highway when necessary for the traveler's safety."). The duty also extends to sidewalks. Beach, supra. Whether the City breached its duty, however, is a matter to be determined and which is not before us.
The question whether the City enjoys absolute immunity for failing to allocate funds to build sidewalks or guardrails relates to only one aspect of the allegations in the plaintiffs' complaint. The plaintiffs alleged negligence in the "creation, design, construction, maintenance, and upkeep" of the wall. With respect to the initial design of the wall or any plan for maintenance as defined in A.R.S. § 12-820(3), the City does not enjoy absolute immunity. Section 12-820.03 provides a public entity with an affirmative defense regarding the "plan or design for construction or maintenance of or improvement to highways, roads, streets, bridges, or rights-of-way . . . ." That there is a defense to liability is, of course, distinguishable from immunity from suit provided under § 12-820.01.
The City also has a duty of repair and upkeep for which it does not enjoy immunity. See A.R.S. § 12-820(3) (definition of maintenance expressly excludes "ordinary repair or upkeep"). The plaintiffs contended below that the City negligently allowed the overgrowth around the retaining wall to obscure the view to the ditch and thereby created a hazard. This is tantamount to a claim of negligent upkeep for which, on this record, the City was not entitled to summary judgment.
The trial court's granting of summary judgment in favor of the City is reversed and this matter is remanded for further proceedings.
PHILIP G. ESPINOSA, Presiding Judge
CONCURRING:
WILLIAM E. DRUKE, Chief Judge
JAMES D. HATHAWAY, Judge
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