Newman v. Maricopa County

808 P.2d 1253, 167 Ariz. 501, 79 Ariz. Adv. Rep. 16, 1991 Ariz. App. LEXIS 16

• Court: Court of Appeals of Arizona
• Decided: January 22, 1991
• Docket: 1 CA-CV 88-309
• Status: Published

Opinions

OPINION

FIDEL, Judge.

The trial court granted Maricopa County’s motion to dismiss plaintiffs’ personal injury suit for failure to state a claim. Plaintiffs appeal and we reverse. The trial court determined — in our view prematurely — that the County owed plaintiffs no duty. We conclude that plaintiffs’ complaint — necessarily accepted as true for the purpose of the motion — sufficiently stated a claim to withstand a motion to dismiss. We additionally conclude that resolution of the question of the County’s duty required a more fully developed record concerning the County’s power and policies and should have been deferred for testing by motion for summary judgment following discovery on those points.

FACTS AND TRIAL COURT PROCEEDINGS

Raul Newman and his son Ronald (“plaintiffs”) were injured while riding all-terrain vehicles on a trail on property owned by named defendants (the “property owners”), who are not parties on appeal. The trail, according to the complaint, was “well-defined” and known by all defendants to be used by public riders. The day before plaintiffs’ accident, Brent Vaughn, a teenager, was killed while riding in the same location.» Both accidents occurred at the top of a natural bowl area, where the trail suddenly ended in a sheer sixty-foot drop — the product of an excavation cut by the property owners in the course of their sand and gravel business.

The Maricopa County Sheriff’s Department (“the Sheriff”) investigated the scene the day Brent Vaughn was killed. During this investigation, the Sheriff took no steps to close the trail, post signs, or initiate remedial discussions with the property owners. Plaintiffs’ accident took place at the same cliff the following day.

Plaintiffs sued the property owners, contending that the sudden drop constituted a hidden and hazardous condition. Plaintiffs additionally sued the County, claiming that the Sheriff breached a duty, after discovering this hazard and its public usage during the Vaughn investigation, to take preventive or corrective measures for the protection of foreseeable later users of the trail.¹

Maricopa County moved to dismiss pursuant to Ariz.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. The County argued that the Sheriff had no duty to correct or warn against a hazardous condition on private land.

Plaintiffs responded that their complaint had sufficiently outlined a theory of duty to withstand the County’s motion to dismiss. However, plaintiffs also asked that the court treat the motion as one for summary judgment and permit the plaintiffs to develop expert testimony and discovery “if ... the Court feels that additional evidence is necessary.” The County opposed the latter request, stating: “Presentation of evidence would be inappropriate. Either the complaint states a claim or it does not.”

The trial court proceeded to treat and grant the motion as one to dismiss. After the trial court embodied this ruling in an appealable judgment pursuant to Ariz.R. Civ.P. 54(b), plaintiffs brought this timely appeal.

DISPOSITION

In reviewing the grant of a motion to dismiss for failure to state a claim, this court accepts as true the factual allegations of the complaint. The moving party has the burden of showing that plaintiff’s complaint does not state a claim upon which relief may be granted. 2A J. Moore & J. Lucas, Moore’s Federal Practice U 12.07[2.-5], at 12-63 (1990). The motion should be denied unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 5A C. Wright & A. Miller, Federal Practice & Procedure § 1357, at 325 (1990) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

Whether a defendant has a duty to protect others from foreseeable, unreasonable risks of harm is initially a question of law for the courts to decide. Markowitz v. Arizona Parks Board, 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Plaintiffs cite Austin v. City of Scottsdale, 140 Ariz. 579, 684 P.2d 151 (1984), to establish that Maricopa County owed them such a duty.

In Austin, the Scottsdale police department received a telephonic warning that an identified person’s life was threatened, but failed to follow its ordinary emergency procedures to notify the threatened victim or his family. When the threat proved accurate and the survivors sued, the trial court found no. duty and directed a verdict for the City. The Supreme Court reversed, stating that the City, “having opted to provide police protection, had a duty to act as would a reasonably careful and prudent police department in the same circumstances.” 140 Ariz. at 581-82, 684 P.2d at 153-54. Plaintiffs argue that this statement defines the present duty of the Sheriff: upon investigating the Vaughn incident and discovering the widespread public use of a deadly trail on private land, a reasonably prudent sheriff, according to plaintiffs, would have undertaken to correct the harm or warn future users against it.

Maricopa County responds that Austin is limited to cases of predicted criminal acts and does not contemplate a duty of public protection against other kinds of harm. We do not interpret Austin so narrowly. The supreme court’s pronouncement in Austin was broad, as are the functions of law enforcement agencies. Crime prevention, though a primary function, is not the sole responsibility of such agencies; they routinely perform such broader protective functions as directing traffic, aiding motorists, assisting in medical emergencies, and investigating accidents. The Maricopa County Sheriff’s Department, indeed, is specifically authorized by statute to carry out search and rescue operations. Ariz. Rev.Stat.Ann. § 11-441(C) (1990).² Law enforcement agencies perform all such activities subject to the duty that Austin described: “to act as would a reasonably careful and prudent [agency] in the same circumstances.”

The County attempts to further distinguish Austin, however, because the endangered person was identified in that case. No affirmative duty arose under these facts, according to the County, because there was no special relationship between the Sheriff and the plaintiffs. This argument harks back to the abandoned Massengill v. Yuma County doctrine that no liability arises from public officers’ general duty to the public unless that duty has narrowed to become a special duty to an individual. 104 Ariz. 518, 523, 456 P.2d 376, 381 (1969). Our supreme court overruled Massengill in Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982), stating that it would no longer “engage in the speculative exercise of determining whether the tort-feasor has a general duty to the injured party, which spells no recovery, or if he had a specific individual duty which means recovery.” 134 Ariz. at 310, 656 P.2d at 599. Public entities, like private entities, owe the duty after Ryan to conduct their activities in such a way as to avoid subjecting others within the range of foreseeable risk to an unreasonable risk of harm.

We conclude that the Sheriff had the duty in this case, as in Austin, to act as a reasonably prudent law enforcement agency would have acted under the circumstances. We further conclude pursuant to Ryan that plaintiffs cannot be placed outside the range of duty — that is, the range of foreseeable risk — as a matter of law.

Our decision of these points is peripheral, however, to the more essential question whether the Sheriff had power to undertake effective preventive or corrective measures in this case. Amicus curiae League of Arizona Cities and Towns (the League) nicely underscores this question when it argues that the Sheriff had neither power nor means to take corrective action on private property and, accordingly, had no duty to attempt what it lacked power to perform. The League adds that the Sheriffs powers are derivative, see Transamerica Title Ins. Co. v. Cochise County, 26 Ariz.App. 323, 548 P.2d 416 (1976), and that there is no statutory authority for counties or their sheriffs to enter private property to remedy a hazardous condition. Indeed, the League argues, the County would have been guilty of trespass had it attempted corrective action.

We cannot accept this argument in whole. First, the argument assumes that the necessary locus of remedial action was private land. Because this case was decided solely on the basis of plaintiffs’ complaint, the undeveloped record does not permit that assumption. We do not know, among other things, what route led to the cliff from public roads, what distance lay between, or whether an effective warning might have been posted on public land at the point where a private trail diverged. Had the County proceeded by motion for summary judgment, plaintiffs would have faced the burden to supply such evidence; the County’s 12(b)(6) motion tested only the complaint.

Second, the League’s argument blurs a point that should remain distinct. We recognize that counties and their sheriffs have no free-floating charter to seek out and post or repair hazardous conditions on private land. Here, however, there was no question of the Sheriff trespassing or requesting entry to seek out potential danger; the Sheriff was officially present to investigate the accomplished danger of a death. See State v. Fisher, 141 Ariz. 227, 237, 686 P.2d 750, 760, appeal dismissed, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984) (“Furthermore, ‘[t]he right of the police to enter [a dwelling] and investigate in an emergency ... is inherent in the very nature of their duties as peace officers ____’”) (quoting United States v. Barone, 330 F.2d 543, 545 (2d Cir.), cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964)). The question, thus, is not whether the Sheriff was entitled to enter, but the extent of his responsibility once officially there.

The amicus brief is helpful, nonetheless, insofar as it highlights the question of power. Power and duty are not coextensive. However, whatever duty of reasonable prudence the Sheriff had while investigating Brent Vaughn’s death,.that duty was surely no greater than its power. For this reason, we are unable to accept plaintiffs’ argument that the question whether preventive or precautionary steps should have been taken is entirely a detail question for the jury, not a duty question for the court. See Markowitz, 146 Ariz. at 355, 706 P.2d at 364 (“We again point out that the existence of a duty is not to be confused with details of the standard of conduct.”). It might indeed he up to a jury to determine what, if any, open protective course the Sheriff should have taken. As the supreme court said in Markowitz, “[T]he concept of duty is not a question of whether ... the defendant should have ... warned of or removed the danger or have taken any other particular action.” Id. at 356, 706 P.2d at 369. A preliminary question, however, is whether any protective course lay within the Sheriff’s power to take.

It cannot be maintained that public officers are wholly powerless to undertake protective measures as to hazardous conditions on private land. Fire sites, for example, are often cordoned off both during and after fires to prevent public access to the danger zone. Unfortunately, whether discovery of a deadly condition during the investigation of Brent Vaughn’s death permitted the Sheriff to undertake protective measures is wholly undeveloped in this record. Likewise undeveloped is the question what, if any, policies and procedures the Sheriff had established to alleviate hazards, encountered during death or accident investigations, that jeopardize the public but exist on private land.

These questions of the Sheriff’s power and procedures overlap, although the former is largely one of law and the latter largely one of fact. Of the latter’s relevance, Austin leaves no doubt. The court there emphasized, in finding a jury question of breach of duty, that the Scottsdale police department had violated its own procedures for handling emergency phone calls. 140 Ariz. at 582, 684 P.2d at 154. Without further development of this issue, we are unable to resolve the question of duty.³ Nor do we believe that the trial court could fairly do so on the record before it.

Indeed, the trial court was informed that discovery was outstanding on this very question. Plaintiffs stated in their responding memorandum: “Plaintiffs have requested ... discovery from Maricopa County regarding guidelines imposed upon its officers in the investigation of hazardous situations involving a death, and much as in Austin, ... are prepared to show that Maricopa County violated its own rules.” The County insisted in reply, however, that its motion be granted or denied on the complaint alone and not deferred for the development of such evidence:

Plaintiffs ... represent that they hope to be able to present evidence that the County violated its own rules. Again, plaintiffs are confusing the standard of care with the duty. Such evidence may be relevant to a breach of duty if one exists, but is irrelevant to the question of law raised by this motion.

The County thus necessarily consented to let its motion stand or fall on the assertion that it could “never be liable, no matter what the circumstances,” for a failure to undertake preventive or precautionary measures with respect to a hazardous condition discovered during an official death investigation on private land. See Markowitz, 146 Ariz. at 357, 706 P.2d at 369 (“To postulate that the possessor of land has no duty at all to protect its invitees or warn of specific types of danger is to postulate that it can never be liable, no matter what the circumstances.”); see also Carrow Company v. Lusby, 167 Ariz. 18, 24, 804 P.2d 747, 753 (1990) (paraphrasing Markowitz: “To postulate that the owner of livestock has no duty at all [to motorists on public highways] is to postulate that the owner can never be liable, no matter what the circumstances.”). Like the supreme court in those cases, we “decline to adopt such a view” here. Id.

This is not to say that we read Austin, as the dissent suggests, “to impose a duty upon a ‘reasonable’ sheriff to safeguard trespassers [from] dangers on private property.” Our decision is far narrower, and its theme is prematurity, not duty. We hold only that it does not appear “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 5A C. Wright & A. Miller, Federal Practice & Procedure § 1357, at 325.

The dissent argues that “[t]he necessary facts are known, available, and undisputed.” We disagree. The County itself maintains only that the facts are irrelevant to a contest over the adequacy of plaintiffs’ complaint. We do not foreclose the possibility that the County might prevail on remand by contesting whether the Sheriff had remedial or precautionary power, whether the Sheriff violated its own policies, or whether any open course of prevention could have been achieved in time to do these plaintiffs good. The development of these points, however, should have been permitted by discovery and motion for summary judgment.

The allocation of burdens in a motion for summary judgment has recently been described by our supreme court:

[A] party moving for summary judgment need merely point out by specific reference to the relevant discovery that no evidence existed to support an essential element of the claim. Conclusory statements will not suffice, but the movant need not affirmatively establish the negative of the element____ If the party with the burden of proof on the claim or defense cannot respond to the motion by showing that there is evidence creating a genuine issue of fact on the element in question, then the motion for summary judgment should be granted.

Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 328, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (White, J., concurring)). The trial court should have proceeded in this fashion to test plaintiffs’ ability to produce evidence to support the bare, but adequate allegations of their complaint.

The judgment of the trial court is reversed, and this matter is remanded for proceedings consistent with this opinion.

MICHAEL C. NELSON, J. pro tem., concurs.

1 . Brent Vaughn’s parents, co-plaintiffs against the property owners, have not sued the County and are not parties to this appeal.

2 . Ariz.Rev.Stat.Ann. § 11 — 441(C) states:

The sheriff shall conduct or coordinate within the county search or rescue operations involving the life or health of any person, or may assist in such operations in another county at the request of that county’s sheriff, and may request assistance from any persons or agencies in the fulfillment of duties under this subsection.

3 . Like the dissent, we look to W. Prosser & R. Keeton, The Law of Torts § 53 (5th ed. 1984). We find there the following reminder: “[I]t should be recognized that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” Id. at 358.