Cooley v. Arizona Public Service Co.

839 P.2d 422, 173 Ariz. 2, 91 Ariz. Adv. Rep. 93, 1991 Ariz. App. LEXIS 172
CourtCourt of Appeals of Arizona
DecidedJuly 25, 1991
DocketNo. 1 CA-CV 89-120
StatusPublished
Cited by5 cases

This text of 839 P.2d 422 (Cooley v. Arizona Public Service Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooley v. Arizona Public Service Co., 839 P.2d 422, 173 Ariz. 2, 91 Ariz. Adv. Rep. 93, 1991 Ariz. App. LEXIS 172 (Ark. Ct. App. 1991).

Opinions

OPINION

KLEINSCHMIDT, Judge.

Rena Marie Cooley sued Arizona Public Service Co. (APS) to recover for injuries she received when she tripped and fell over a raised area on the sidewalk abutting an APS building in Phoenix. She estimated that where she fell, the sidewalk was raised about % of an inch to one inch.

The trial court granted summary judgment in favor of APS, holding that the condition of the sidewalk did not constitute a defect; that to the extent the sidewalk was defective, it was obvious to Cooley who had used the sidewalk for several years; and that APS did not have notice of the condition. We reverse.

EXISTENCE OF DEFECT IS A JURY QUESTION

If reasonable minds can differ as to whether a sidewalk is defective, the question is one for the jury. City of Phoenix v. Weedon, 71 Ariz. 259, 264, 226 P.2d 157, 160 (1950); Dillow v. City of Yuma, 55 Ariz. 6, 10-11, 97 P.2d 535, 537 (1940). In [3]*3Weedon, the court upheld a jury verdict for the plaintiff based on evidence that a raised area in a sidewalk was Vs inch in height. Thus, in the case before us, the trial judge erred in finding, as a matter of law, that the sidewalk was not defective.

WHETHER DEFECT IS OBVIOUS IS A JURY QUESTION

The trial judge erred in finding, as a matter of law, that the condition of the sidewalk was so obvious that APS could not be liable for the plaintiffs injury. This, too, is an issue for the jury. See Miller v. George F. Cook Constr. Co., 91 Ariz. 80, 83, 370 P.2d 53, 55 (1962).

CONSTRUCTIVE NOTICE OF DEFECT IS A JURY QUESTION

Cooley does not contend that APS had actual notice of the raised area, so she must show that it had constructive notice. See Wisener v. State, 123 Ariz. 148, 150, 598 P.2d 511, 513 (1979); City of Phoenix v. Williams, 89 Ariz. 299, 304, 361 P.2d 651, 655 (1961); Matts v. City of Phoenix, 137 Ariz. 116, 118, 669 P.2d 94, 96 (App. 1983). To raise a disputed question of material fact on the issue of constructive notice, Cooley must produce evidence from which it can be inferred that the raised area existed long enough that APS, by the exercise of reasonable diligence, should have known about it. See Weedon, 71 Ariz. at 265, 226 P.2d at 161.

In our opinion, the very nature of a defect such as this, which a jury could find is neither transitory nor one that usually arises suddenly, is enough to support an inference that it had been in existence for sufficient time to put APS on notice. Since we find no Arizona cases which are factually similar to this one, we look to decisions from other states. Most closely on point is Bodeman v. Shutto Super Markets, 197 Colo. 393, 593 P.2d 700 (1979). There, the plaintiff was injured when the shopping cart she was pushing overturned on an asphalt ramp leading from the sidewalk in front of a grocery store to a parking lot. The evidence showed that the accident was caused by a hole in the ramp that was four inches wide and two inches deep. The jury found for the plaintiff, but the Colorado Court of Appeals set aside the verdict because the plaintiff had produced no evidence to show how long the hole had been in existence. The Supreme Court of Colorado reversed and reinstated the verdict in favor of the plaintiff. It observed that constructive notice of a dangerous condition need not be proved by direct evidence, and the very nature of the defect can be considered on the question of how long the condition existed. It quoted with approval from the dissent filed in the court of appeals:

The character of the defect may affect the legal consequences flowing from it. From the very nature of the defect here, the jury could and did infer that it had existed for a period of time sufficient for the proprietor to become aware of it and repair or warn customers of it.
... Ordinarily, a hole like this one ... does not develop suddenly. This inference is not mere wild speculation but is based on matters within the realm of common human experience and therefore plaintiffs case should have survived a motion for directed verdict.

The Colorado Supreme Court then went on to say that this was not a ease in which the transitory nature of the condition gave rise to a grave doubt as to whether the defendant could have discovered it, and the court held that there was an issue of fact as to whether the defendant did have constructive notice.

Other cases support the same conclusion. For example, in Parker v. DeWitt County Housing Authority, 57 Ill.App.3d 973, 15 Ill.Dec. 334, 373 N.E.2d 680 (1978), the plaintiff was injured when a hole surrounding a drain in the defendant’s yard caused him to trip and fall. The court, observing that reasonable inferences could be drawn either way, held that whether the defendant had constructive notice of the existence of the hole was a question for the jury.

In Hascup v. City and County of Honolulu, 2 Haw.App. 639, 638 P.2d 870 (1982), [4]*4the plaintiff caught her heel in a hole in a sidewalk, causing her to fall. She introduced two pictures of the hole into evidence. The report of the case mentions nothing about what those pictures showed as to what the hole looked like. The court held that the city was not entitled to a directed verdict, saying that the length of time a condition must exist before it can be inferred that the defendant had constructive notice of it is ordinarily a question for the jury.

At least one case we are aware of imposes an even more relaxed standard on the plaintiff. In Mims v. Jack’s Restaurant, 565 So.2d 609 (Ala.1990), the plaintiff tripped on a metal threshold that was raised above the floor about lk inch. An inspection of the threshold following the accident showed that several screws securing the threshold were missing. The Supreme Court of Alabama, without going into detail, held that once the plaintiff has proven a defect, the question of actual or constructive notice is for the jury, regardless of whether the plaintiff has shown that the defendant had or should have had notice of the defect at the time of the accident.

The possible inference of constructive notice that arises from the nature of the defect in this case is made even stronger by the plaintiffs testimony that she had walked to First Interstate Bank once a week for approximately seven years, although she did not necessarily walk on the sidewalk where she fell. She did state, however, that prior to her fall she had noticed that the sidewalks were “all pretty bad over there.”

EFFECT OF THE CITY CODE

Because this case must be tried, we will address the plaintiffs argument that the Phoenix City Code imposes liability on APS regardless of whether it had actual or constructive notice of the condition of the sidewalk.

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Cite This Page — Counsel Stack

Bluebook (online)
839 P.2d 422, 173 Ariz. 2, 91 Ariz. Adv. Rep. 93, 1991 Ariz. App. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooley-v-arizona-public-service-co-arizctapp-1991.