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Bledsoe v. Goodfarb12/19/1991
r Users' Ass'n, 118 Ariz. 329, 576 P.2d 517 (Ct.App.1978) (distinguishing Ramada Inns to find basis for negligence liability for flooding caused by canals).
Finally, in some instances, we have simply refused to apply the policy articulated in Salladay. In Harris v. Buckeye Irrigation Co., 118 Ariz. 498, 578 P.2d 177 (1978), we refused to apply Salladay to the negligent construction and maintenance of a bridge over an irrigation canal. The bridge was needed to permit operation of a canal checkpoint. Many people from surrounding neighborhoods, however, also used the bridge to cross the canal to gain access to a nearby high school. Id. at 499, 578 P.2d at 178. The plaintiffs' twelve-year-old son was killed when he rode his bicycle off the bridge. Speaking through Justice Cameron, we held that
under the peculiar facts of this case public policy does not require the application of the Salladay immunity doctrine. This, it seems, is the only way that the defendants and others in like situations can be prevented from using a grant of immunity as an excuse not to exercise reasonable care to protect members of the public . . . .
Id. at 502, 578 P.2d at 181.
Recognizing, therefore, that we have not held canal operators completely immune from liability and that this case does not involve the attractive nuisance doctrine, we return to the original rationales in Salladay to determine whether its immunity applies to this case. First, we examine the ability to render cable gates harmless. The Association argues that it hung reflective signs on its cable gates that ordinarily made them visible and could do nothing further to render them harmless. While this certainly has a bearing on the question of negligence, the dangers presented by canal roads as such are simply not comparable to the operator's inability to protect children from the inherent, unavoidable dangers of open canals.
The second basis of the Salladay doctrine relates to the importance of water to an arid state. The Association argues that canal roads are vital to the maintenance and operation of the canals. Gates allow it to restrict access to the roads, thus enhancing its ability to operate the canals. Even assuming all this, we again believe it more relevant to the question of whether the Association was negligent in this case than it is to whether this court should declare that a canal operator can never be liable for negligence in the manner in which it maintains a canal road open to the public. We are willing to accept the proposition that canal roads are essential to the maintenance of canals, and possibly, therefore, that the mere construction of a canal road is not, in and of itself, an act for which the operator can be held liable. We cannot accept, however, what is implicit in the Association's further submission -- that the
canal operator is also immune from liability for negligence in the manner in which it maintains those roads, so that it is free to stretch chains, install spring guns, dig pits, plant stakes, or otherwise "restrict access" to roads it knows the public is permitted to use and does use. We do not believe that extending Salladay immunity in such a manner is essential to ensure the continued delivery of irrigation water to our arid land.
Third, we examine the obviousness of the danger. This case, unlike Salladay, does not involve the inherent danger of the structure -- a road in this case and a canal in Salladay. It involves the use of cable gates, and, while this cable gate may or ma
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