Harris v. Buckeye Irrigation Co.
578 P.2d 177
Ariz.
1978
Check Treatment

*1 bеlieve, however, We not do that the instant case supports

evidence in the such

an The defendant not instruction. fled an

the scene hid behind automobile but apprehended

was not until later in the eve

ning was seen riding when he in another alleged Although

car. defendant’s re might

action to the mace be considered

the trier of whether determining fact arrest, in fact resist

defendant did will support an ‍‌‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​‌‍instruction on self-defense.

We find no error. oрinion of the Court of Appeals, is va- (App.1977) P.2d 189

Ariz.

cated and the decision of the trial court is

affirmed.

STRUCKMEYER, J., HAYS, V. C. GORDON, JJ.,

HOLOHAN and concur.

578 P.2d

Thomas HARRIS for and on behalf of Harris,

himself Hallie his

wife, Appellant,

BUCKEYE IRRIGATION COMPANY Buckeye Water Conservation District,

Drainage political subdivi- sion, Appellees. Warnicke, Roush, Treon, Dann P. & A. No. 13570. Treon, Andrews, T. Richard Marenda & Andrews, Moseley, P. A. by William Den- S. Arizona,

Supreme Court of Phoenix, nis P. Turnage, appellant. ‍‌‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​‌‍for In Banc. Jennings, Strouss Michаel & Salmon April Beale, Phoenix, A. appellees. for

CAMERON, Chief Justice. an appeal by plaintiff

This is granting summary a motion for judgment. moved Defendant had for dis- missal pursuant 12(b)(6) to Rule Procedure, A.R.S., Rules of Civil trial court as a treated motion motion summary judgment pursuant Rule 56 of the Rules.

499 on only answer one Children and adults living We must in the Valencia Sallаday previous long footbridge Does the case of area have used this to and appeal: Co., school, Copper 12 from Mining League Dominion the the Little v. Old 124, field, (1909) swimming P. 441 cases fol- and the There is a pool. 100 and Ariz. municipal сonstruction maintenance to the construction and lowing, apply negligent bridge crossing yards irriga- a canal located 400 bridge of over an and maintenance checkpoint the east of the and another to irrigation сompany? an canal tion crossing quarter a of a to the west of mile Viewing facts reasonable in- and all checkpoint. light in a to be drawn therefrom ferences testimony prior There was to the against to the whom party favorable most at least question, there had been accident granted, Livingston v. Citi- the motion bridge and that drowning one at the same Inc., 63, Utility, zen’s 107 Ariz. 481 P.2d 855 been a near four months before there had Contractors, (1971); Serna Statewide had drowning brought which been to Inc., (1967), Ariz.App. P.2d deposi- attention of the defendants. The following necessary for a determination testimony tion of the of the Buck- Principal defendants, Buckeye this matter. The of eye High Union School was as follows: Compаny Water Irrigation Buckeye “Q you And have concern had some District, and main- Drainage Conservation about the children that check irrigation an near the town of tain ditch point, Mr. McNabb? east to Buckeye, Arizona. The ditch runs Yes, “A almоst The north side of the ditch borders from the first school west. year, my main concern has right-of-way Pacific Railroad on a Southern crossing been that it’s be- farm land. privately some owned tween Fourth what I Street and area is a of somе of this settlement North Road, Apache have called which is people, many with school 550 to 750 adjacent station. There Gulf canal is the To south of the children. is a road that used to cross the canal High grounds and Buckeye Union School there, and this the stu- means League a Little baseball field to it is next a have to anywhere dents walk pool. a gain a quarter to a half mile to point a near the end zone At crossing.” High field is Buckeye Union School foоtball Principal that he had testified system. This checkpoint irrigation a attempted crossing to make the safer: concrete slabs or checkpoint consists two “Q say you Weigold Did ever to Mr. [the on each side of the ditch pillаrs irrigation company]: slab When- pillar one in the middle. We would like have a better to water level ever it is desired raise the protect crossing the children. are irrigation purposes, for boards upstream part This was I my “A convеrsation. to check the between slabs inserted proposed—and proposal: this is the provide a point. water at that To flow of that we had River some old Salt irrigation dis- employees of the method for braced, very рower poles, steel boards into the slot at insert trict heavy, they enough long were placed boards have been checkpoint, four canal, span the I visualize and could side, each pillar, two on concretе posts, that we could use these steel a fifth together in the middle nailed have embed them concrete and two boards bridge is then short board. shop put and welding students not indi- though the record does wide and them, railings on would be a and it boards, before pictures the size cate a good crossing. safe and also But of counsel and the statement this court they fit not saw to do so. they are indicate that argument oral “Q Wei- you Have ever indicated to Mr. 12 inches wide sо that more than gold wide. in conversation to him that more than inches is no point—the concerning felt the cheek Buck- a near drowning four months High eye point Union check School prior to the death boy: Harris right north of the athletiс field was youDo Tilley, know Mrs. the mother dangerous the children to use? boy fell in there? that would be matter of No, sir. I opinion. my opinion, In could cross *3 “Q Never met her? life, my perhaps, it the rest of and n No, “A sir. If danger. people never be in аre “Q Just talked to her on the phone? going bicycles to cross it with or I “A assume that is the name. I don’t horses, motorcycles or or if they even recall the name of the woman type or of vertigo any have that of that called mе. thing, they or if are young too or drunk, “Q identify unstable or it would be un- Did she herself when she safe. called? “Q you ever or Have indicated ex- I suppose “A she did. I don’t recall. Weigold pressed this to Mr. in those “Q call, And you after she did did know conversations? boy that her had fallen into ca- sure, it, “A in my I have indicated ‍‌‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​‌‍I’m nal? talking why about the reasons we No; “A I did not know it. to move the location.” wanted Well, “Q did, she told you he didn’t she? as testified to the use of Principal The “A That doesn’t mean he fell. bridge: “Q I yоu mean she did tell that he had McNabb, “Q ask you Mr. let me some- fallen in? thing about use of the structure now, Well, “A he could have fallen in or during the summer months when he could have gotten in canal League. have I un- they the Little I himself. have no way knowing Lеague games derstand that Little things. those played just are to the south “Q My question is: Did tell you she high park school over property he in fell the canal? there. “A Yes. right.

“A That’s “Q express And did she some real con- “Q swimming pool? And there is a cern оver this or facility? structure right. “A That’s I say “A probably would she did or she “Q summertime, In chil- younger wouldn’t have called me. dren, say grade school use let’s “Q And you, in after she called did structure more the summer any consider or they steps than do the winter— makе—take make the structure—modify object to the form. “MR. BEALE: I structure? Well, “THE I would estimate WITNESS: No, “A sir. there not too much difference is The activi- amount traffic. school “Q Why? during ties attract them the winter- obligation Because is the time, and recreаtion and parents to keep the kids off of this pool all and downtown attract them property keep them off the proba- year would estimate around. I property adjoining it the north bly of traffic.” about same amount property adjoining it on the Principal estimated that 100 south, which all private property. is bridge. used

people day They trespass have to up from to the north across the tracks on attitude of the defendants can best railroаd private par- following deposition property get to this be shown district, Weigold, point. they Wilbur W. ticular When leave this property ditches, tion point, they private small, are on large and similar in they are on that if trespassing purpоse, construction, use, equal- or to they go on to school ly dangerous alluring child, are prop- property anybody our else’s to be found throughout the territory erty. wherever cultivation of land is his way some two bridge. 1975, was found The “Q Nobody else? “A It’s not bicycle, the Marlon [******] [******] facility everything safe for bility is? No, it No; might use My responsibility pleadings allege the body that company in fell off Little I don’t believe it is.” miles downstream from that’s what of Marlon L. L. isn’t. the canal near the my responsibility tо is safe for anybody’s Harris, it, to League your duty on our canal the isn’t that correct? bridge. is to feel that on 19 June use. Harris baseball 12, anybody the your responsi- might while see The checkpoint was employees system that the see pаrk bicycle use it. on found his on And: properly can be injuries impossible such various means of diversion or use of prosperity. There is no distinction that the bution system. in carried water. Both as a matter of law matter of so-called ‘turntablе doctrine’ should not pensable for the maintenance of life and Ariz. at be extended to complete immunity the Salladay “This court has ion Copper Mining Company, supra, 12 ment various mechanical and here presented.” Sаlladay v. Old Domin- v. Maricopa Arizona canals needed on, received 129-30, *4 public in to render and such Co. the to operate decision diversion built 100 P. cover maintenance not * Mun. drawn for policy ** a child from conduits, harmless, uрon to irrigation such Wat. we feel electrical ” points, provide and extended water a Dombrowski liability Cons. practically case are indis- that but also districts only any almost equip distri Dist., as is as a the 275, 276, 136, 108 Ariz. 496 P.2d 137 ‍‌‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​‌‍brought by was parents Suit (1972). See Leе v. Salt Valley River The deceased. defendants moved dismiss Ass’n, 122, Water Users’ court, 73 Ariz. P.2d upon and the based the affidavits (1951); Sulphur Downs v. case, Springs depositions filed in the treated the 286, Valley Coop., Electric 80 Ariz. summary judgment. motion as a motion for (1956); P.2d City granted plain- The Glendale v. Sut court motion and ter, 54 Ariz. (1939). 95 P.2d 569 appeals. tiff We Because of the for water in an believe the facts of the need arid instant land, irrigation case can companies distinguished in Arizona have be from previous long immunity been favored with from cases of this court Ap- Court of peals. case, suits for attractive nuisance: In the instant the defendant “ * ** placed bridge point a at a where it be could It is a matter of common anticipаted public would use it to knowledge alluring and attractive cross the flumes, canal. Because of the location of such as the one in in this school, field, case, the baseball carrying running water, are exten- it pool, reasonably could ex- sively territory, only by used in this be pected that children well as necessary proper con- as adults would miners business, bridge. use this The duct of their but farmers in defendant also had ample notice of the necessary apрlication bridge diversion and fact that the dangerous. was, public potentially streams to a beneficial use in fact, in upon open public their lands the cultivation of generally and the flumes, crops. irriga- Not nothing their but defendants did either to restrict the bridge by public use of the or to make it Reversed and remanded for further pro- persons they knew safe for were ceedings opinion. not inconsistent with this bridge. the law “We find to be that if an owner HAYS, HOLOHAN, GORDON, JJ., occupant of рroperty permitted or has concur. generally to persons use establish STRUCKMEYER, Justice, Vice Chief across it under such circumstances as way concurring. in public to induce a belief that character, I concur in the result. persоns availing he owes to duty thereof the due to those themselves upon premises by

who come invita- omitted)” (citation Macy, Olsen v.

tion. 72, 74,

86 Ariz. 340 P.2d 986-87

(1959). Torts, See also Prosser 4th

Ed., pp. 61 at 388-89. § immunity given districts 578 P.2d 181 Salladay, supra, pub- was based sound Arizona, Appellee, STATE of policy lic at the time. It is sound far as the use of policy today as canals and Unfortunately, are concerned. canal banks DeCOE, Ray Appellant. Michael leads to the cal- immunity this sometimes *5 No. 4160. “public policy exemplified be damned” lous manager of the testimony Supreme Arizona, Court of irrigation сompany in the instant defendant In Banc. The statement of the that it case. April to see that my responsibility was “not system on our canal is safe for everything use” and that he is con-

anybody’s safety employees with the of his

cerned else’s, anyone is the direct result of the

not that be- company

belief Salladay, supra, it had absolute

cause of

immunity from suit. was decided on motion for

As this matter

summary judgment, all the facts were not however,

developed. Assuming, finds, jury ‍‌‌‌‌‌‌​​‌‌‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌‌‌‌‌​​‌​‌​‌‌​‌‍hearing after all of the

judge or trial, that Marlon Harris fell

evidence as the result of

from part

negligence the defendants building employees

their or mainte- bridge, we

nance of the feel under public policy facts of this case does

peculiar require application Salladay This, seems,

immunity doctrine. is the

only way that the defendants and others in prevented situations can be

like grant immunity as an excuse not protect

exercise reasonable care to negligently

members of the from a bridge they and maintained

constructed being public. used

knew