Opinion
No. 1 CA-CV 18-0028
01-31-2019
RUBY ORDUNO, et al., Plaintiffs/Appellants, v. CITY OF PHOENIX, Defendant/Appellee.
COUNSEL Napier Coury & Ballie PC, Phoenix By Michael Napier, Anthony J. Coury, Cassidy L. Bacon Counsel for Plaintiffs/Appellants Sanders & Parks PC, Phoenix By Jeffrey L. Smith, Amanda M. Breemes Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CV2016-003575
The Honorable Rosa Mroz, Judge
AFFIRMED
COUNSEL
Napier Coury & Ballie PC, Phoenix
By Michael Napier, Anthony J. Coury, Cassidy L. Bacon
Counsel for Plaintiffs/Appellants
Sanders & Parks PC, Phoenix
By Jeffrey L. Smith, Amanda M. Breemes
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kenton D. Jones and Judge David D. Weinzweig joined.
SWANN, Judge:
¶1 In this tort case against a municipality, the plaintiff appeals the superior court's summary judgment holding the city immune under A.R.S. § 12-820.01 from liability for its decision not to improve a bus stop. Because we conclude that the city had absolute immunity, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
¶2 The facts in this case are tragic. On March 9, 2015, seventeen-year-old Ruby Orduno was struck and severely injured by an out-of-control car while waiting at a bus stop near 24th Street and Oak Street in Phoenix.
¶3 Orduno and her parents sued the City of Phoenix, alleging that the City was negligent by failing to modernize the bus stop to make it safer. The City argued that it was immune from suit under A.R.S. § 12-820.01 because the decision not to improve the bus stop was the result of its fundamental governmental policy. The parties presented the following facts.
¶4 The City installed the bus stop in 1989. Approximately ten passengers board the bus from the bus stop each day. The bus stop is marked by a sign, which is set back approximately six feet from the street, near where the public sidewalk meets the private property line behind it, and is located between two driveways. At the time of the incident, the bus stop did not meet the then-current recommended safety standards regarding the proximity of bus stops to streets and driveways.
¶5 The City maintains a database that prioritizes all bus stops in Phoenix for potential improvement. The City considers several factors in determining a bus stop's upgrade priority, including the average weekday boarding rate, whether there is an existing transit pad, and, if there is no transit pad, whether there is sufficient right-of-way to add one that complies with the Americans with Disabilities Act. The City improves the bus stops that are high on the priority list, and also occasionally improves
other bus stops that are located close to those selected through the prioritization process.
¶6 The City considered the bus stop at issue here for improvement in 2011. But because it had insufficient right-of-way to build an ADA-compliant transit pad and a low average boarding rate, the bus stop was "not prioritized."
¶7 After discovery, the City moved for summary judgment on two grounds. First, it argued that it was entitled to absolute immunity. Second, it argued that there was no dispute of material fact sufficient to warrant a trial on the merits of the negligence claim. The superior court granted the motion, concluding the City had statutory immunity because "[its] bus stop prioritization process involves the exercise of discretion regarding the allocation of limited City resources because of eminent domain (right of way easement) and ADA issues, and is not merely a low level operational decision." The court also noted that it agreed with "[the City]'s remaining arguments" regarding Orduno's negligence claim. Orduno appeals.
DISCUSSION
¶8 Orduno argues the superior court erred because (1) there was evidence that the Bus stop was negligently designed when it was first installed, (2) the failure to improve the bus stop was not the product of an affirmative decision protected by immunity, but a "decision by default," and (3) the City's design and use of the prioritization list for determining which bus stops would be improved was "operational," and did not involve "fundamental governmental policy."
¶9 A.R.S. § 12-820.01, Arizona's absolute immunity statute, provides, in relevant part:
A. A public entity shall not be liable for acts and omissions of its employees constituting . . . :
. . .
2. The exercise of an administrative function involving the determination of fundamental governmental policy.
B. The determination of a fundamental governmental policy involves the exercise of discretion and shall include, but is not limited to:
1. A determination of whether to seek or whether to provide the resources necessary for any of the following:
(a) The purchase of equipment.
(b) The construction or maintenance of facilities.
. . .
2. A determination of whether and how to spend existing resources, including those allocated for equipment, facilities and personnel.
We construe the statute as reinforcing the "common law rule in Arizona that the government is liable for its tortious conduct and immunity is the exception." Pritchard v. State, 163 Ariz. 427, 431 (1990); see Stone v. Ariz. Highway Comm'n, 93 Ariz. 384 (1963) (abolishing the doctrine of sovereign immunity).
I. ORDUNO DID NOT PRESENT EVIDENCE FROM WHICH A REASONABLE JURY COULD FIND THAT THE BUS STOP WAS NEGLIGENTLY DESIGNED WHEN INSTALLED.
¶10 Orduno first argues that the City is not entitled to immunity because the bus stop did not comply with industry design standards when it was installed in 1989.
¶11 "If a City decides to act, it must do so non-negligently." Galati v. Lake Havasu City, 186 Ariz. 131, 134 (App. 1996). But here, Orduno did not present evidence that the City negligently placed or installed the bus stop when it was first constructed. While Orduno asserts that an expert testified the bus stop was negligently designed because it was placed between two driveways, she has submitted no portion of the record that actually contains such testimony. See Lewis v. Oliver, 178 Ariz. 330, 338 (App. 1993) ("We will consider only those matters in the record before us and presume that, as to matters not in our record, the record before the trial court supported its ruling.").
¶12 The parties agree that the prevailing safety guidelines in 1989 were silent as to the recommended distance between the street and a bus stop sign. Orduno, however, proffers an expert's opinion that the planning committee's subsequent recommendation concerning the appropriate distance between the street and a sign implied that "they knew [at the time of the bus stop's initial construction] that this was a significant safety
problem and it had to be corrected." But the mere fact that a city revises its design standards over time does not mean that all of its earlier design protocols become actionably negligent. Design and construction techniques of all manner of installations and products improve over time, but this improvement does not establish negligence retroactively. And while the City did not affirmatively establish that the bus stop was installed in accordance with the standards of the time, it was not required to make such a showing to invoke its absolute immunity. Compare A.R.S. § 12-820.01 (providing absolute immunity for fundamental governmental policy decisions) with A.R.S. § 12-820.03 (providing an affirmative defense to public entities for injuries arising out of transportation design, for which the public entity has the burden to prove each element, including that the design was within accepted standards when installed).
¶13 In the absence of evidence to show that the City acted unreasonably when it constructed the bus stop in 1989, the issue in this case is whether the City is immune from liability for its failure to bring the bus stop into conformity with improved standards that later developed.
II. THE CITY MADE AN AFFIRMATIVE DECISION NOT TO IMPROVE THE BUS STOP.
¶14 Orduno also argues that the City failed to provide evidence that it made an affirmative decision not to improve the bus stop and that the absence of improvement was instead a "decision by default." Section 12-820.01 "does not immunize non-decisions, such as a failure to make a decision or a decision by default." Tostado v. City of Lake Havasu, 220 Ariz. 195, 199, ¶ 16 (App. 2008). Rather, immunity attaches only after the public entity makes an actual decision or performs an affirmative act. Id.; see Galati, 186 Ariz. at 136 (reversing summary judgment entitling the city to immunity because the city did not present evidence that it made an affirmative decision not to fund a road improvement). Here, the City presented undisputed evidence that it considered the bus stop for improvements in 2011, and that the bus stop was not prioritized because of its lack of right-of-way and low weekday ridership. See Kohl v. City of Phoenix, 215 Ariz. 291, 293, ¶ 7 n.3 (2007) (noting that when the city had analyzed an intersection for signalization on several occasions but ultimately did not place a signal there, the city's inaction did not constitute a decision by default). The City therefore met its burden, and the court did not err.
III. THE CITY'S DECISION NOT TO IMPROVE THE BUS STOP DIRECTLY FLOWED FROM A FUNDAMENTAL GOVERNMENTAL POLICY.
¶15 Orduno argues that the City's failure to improve the bus stop was not the direct result of fundamental policymaking, but of the City's implementation of policy, and was therefore not protected under A.R.S. § 12-820.01. More specifically, Orduno contends that the City's prioritized list of bus stops is similar to, but distinct from, the policy-based decision-making process in Kohl v. City of Phoenix because the City's priority list here was the product of subjective and engineering input from City staff.
¶16 The issue is whether the City's decision not to improve the bus stop was "[t]he exercise of an administrative function involving the determination of fundamental governmental policy." See A.R.S. § 12-820.01(A)(2). "Our cases have repeatedly distinguished between policymaking, which is immune under § 12-820.01, and the implementation of policy—so-called 'operational' decisions—which are not entitled to such absolute immunity." Kohl, 215 Ariz. at 295, ¶ 19. While "[policy] level decisions . . . involve questions of public policy and the balancing of competing policy objectives," including whether to provide funds for improvement projects, "operational level decisions relate to the ordinary day-to-day operations of the government and involve the exercise of scientific or professional judgment." Warrington v. Tempe Elem. Sch. Dist. No. 3, 187 Ariz. 249, 253 (App. 1996) (citation omitted). Governmental actions that "flow inexorably" from a fundamental policy, and are not disrupted by some intervening operational decision, are generally considered policy decisions subject to absolute immunity. See Kohl, 215 Ariz. at 295-96, ¶¶ 19-21.
¶17 The superior court found that Kohl was "on point" and decided this case accordingly. Orduno argues that Kohl should have been distinguished. In Kohl, the City of Phoenix sought immunity from liability for its decision not to install a traffic signal at an intersection where a child was struck by a car and killed. 215 Ariz. at 292, ¶ 1. To determine whether the city's decision not to install a traffic signal was an exercise of its fundamental governmental policy, the court reviewed the city's decision-making process. Id. at 293, 295-96, ¶¶ 4, 19. The city's process consisted of ranking intersections according to six factors, including traffic volumes, proximity of school crossings, and collision history. Id. at 293, ¶ 5. The city's staff collected and input the data into a computer program, which ranked the intersections, and the city selected the top twenty or so candidates. Id. at ¶¶ 5-6. The city then considered several additional
factors to narrow the pool to approximately ten intersections that would ultimately receive traffic signals. Id. at ¶ 6. The intersection at issue never ranked higher than seventy-first. Id. at ¶ 7. The court held that the city was entitled to absolute immunity, id. at 298, ¶ 31, reasoning that the city's use and design of the factor-based ranking process was a fundamental policy decision, id. at 294, ¶ 14, and that the city's decision not to signalize the intersection "flowed directly from that immune [policy]," id. at 296, ¶¶ 22-23. The court noted that the second round of narrowing based on additional factors may have constituted an operational decision not entitled to immunity, but declined to reach the issue because the intersection was never subject to the additional narrowing process because it was ranked too low. Id. at 296, ¶ 24.
¶18 Here, the City's process is sufficiently similar to the process in Kohl. The City does not have the resources to improve every bus stop, and its decisions concerning the raising and expenditure of revenue unquestionably constitute fundamental governmental policy. The City presented an uncontroverted affidavit stating that it maintains a database of bus stops in need of improvement, and prioritizes them through application of several factors, including the average weekday boarding rate, whether there is an existing transit pad, and, if there is no transit pad, whether there is sufficient right-of-way to add one that complies with the ADA. When a bus stop does not have a right-of-way and has low weekday usage, it will not be prioritized for improvement. The affidavit further states that the bus stop was "not prioritized" because it did not have the available right-of-way to build an ADA-compliant transit pad and the bus stop had low average weekday usage.
¶19 Orduno argues that the City staff inserts its operational discretion in creating the prioritization list and coming to its ultimate decision. She points to a City employee's deposition testimony, apparently in reference to the factors the City uses in determining whether a bus stop will be improved, that "there's staff members that can go out and look and make the determination." Orduno asserts that this is an admission that the City uses its professional judgment in making the decision. Whether we interpret this testimony to mean that the staff makes the final decision on improvements or that the staff collects data for each prioritization factor, it does not affect the City's decision as it relates to the bus stop because, like the intersection in Kohl, the bus stop was "not prioritized" and therefore never subject to the final round of decision-making. See 215 Ariz. at 296, ¶ 24. And Orduno offers no evidence to support the contention that collecting data on ridership or available real estate amounts to impermissible professional judgment. See id. at ¶ 22. To the contrary, it
would be impossible for the City to apply its policy in good faith without such data. While the City admitted that it occasionally improves non-prioritized bus stops that are near prioritized bus stops set for improvement because of cost savings, these improvements are unrelated to the prioritization process. See id. at 296-97, ¶¶ 25-26.
¶20 Accordingly, the City's data-based prioritization process was fundamental governmental policy, and its decision not to improve the bus stop directly flowed from the process. The City is therefore immune from liability, and we need not address the merits of Orduno's negligence claim.
CONCLUSION
¶21 For the foregoing reasons, we affirm the summary judgment of the superior court.