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Ballesteros v. the5/18/1989
This is an appeal from a defense verdict in a personal injury case. The determinative issue is whether the trial court erred in refusing to instruct the jury on the duty of care imposed on the state in relation to its highways. We hold that it did and reverse.
I. FACTS
On April 26, 1984, Antonio B. Ballesteros was in a car being driven by Carlos Montano which skidded on an icy curve on State Highway 666 north of Morenci and rolled down a steep slope. Montano was killed and Ballesteros was injured. Witnesses testified that the roadway at the curve was covered with ice and snow.
There had been three previous accidents at the same curve, all three of them involving automobiles which left the roadway and two which involved skidding on ice.
There was conflicting evidence as to the safeness of the highway at the site of the accident. Plaintiff's accident reconstruction and traffic engineering expert testified (1) that despite the posted speed limit of 30 miles per hour, the maximum safe speed for the curve under dry conditions was 22.5 miles per hour; (2) that the curve was a spiral or horseshoe curve and deceptive to northbound motorists because of the mountain embankment on the left-hand side of the highway; (3) that the roadway was not safely signed because there should have been a turn sign or horseshoe curve sign with a 20-mile-per-hour advisory speed plate just prior to the accident location; (4) that the ice sign was improperly placed and should have been located so that a northbound motorist would see it when starting into the curve; (5) that a guardrail was required at the accident curve, and (6) that the state should have salted or sanded the roadway.
At the trial, the court refused to give the following instruction requested by the plaintiffs:
The STATE OF ARIZONA has a duty to keep its highways reasonably safe for travel. That duty includes the duty to place proper barriers, railings, guards and/or warning signs at dangerous places on a highway when necessary for the safety of motorists traveling on the highway.
The trial court also refused to instruct the jury relative to the state's duty with regard to ice and snow on its highways.
The trial court gave no instructions regarding the state's duty to the traveling public with regard to its highways. It did instruct the jury that "the standard of care imposed upon the State of Arizona is that of a reasonably careful person" and " egligence is the failure to use reasonable care. Negligence may consist of action or inaction. A person is negligent if he fails to act as a reasonably careful person would act under the circumstances."
II. CONTENTIONS OF THE PARTIES
The plaintiffs contend that it was reversible error not to instruct the jury on the state's duty in the operation, design and maintenance of its highways. The defendant contends that it was not necessary to submit the issue of duty to the jury because it is a question for the trial court,
and that the trial court need not instruct on every refinement suggested by counsel and that the instructions as a whole were adequate.
III. DISCUSSION
The basic elements of actionable negligence are a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach.
The issue of duty is resolved by the court as a matter of law. Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985). A duty is a matter of "'the relation between individuals which imposes upon one a legal obligation for the ben
Page 1 2 3 Arizona Personal Injury Attorneys
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