Torts - State Qualified Immunity Warning of Possible Flood/Civil Procedure - Duty to Seek 56(f) relief
Edwards v. Board of Supervisors, 597 Ariz. Adv. Rep. 7 (App., Div. I, March 30, 2010)(J. Orozco)
COUNTY IMMUNE FROM SUIT FOR FLOODING WHERE UNCONTROVERTED ITS CULVERT DESIGN MET ACCEPTED ENGINEERING STANDARDS AND WHERE PLAINTIFF WAS WARNED IN WRITING FLOODING COULD OCCUR
Plaintiffs' leased home in Prescott Country Club in 2004. The home had been built on a low spot and there was a culvert designed by an engineer to withstand a 25 year flood near the property. The plaintiffs also received a letter from Yavapai County after it took over responsibility for the roads and culvert advising the plaintiffs that "parcel may be subject to flooding. Water has backed up in the past." Two rainstorms occurred in August 2004, after the warnings had been issued resulting in flooding of the home. Plaintiffs sued claiming the design of the culvert was not "state of the art" and the warning was not reasonable because it didn't tell the plaintiffs what suitable precautions could be taken to do to avoid the flooding. ARS sec. 12-820.03 gives the government qualified immunity for the design and construction of roads and appurtenances thereto provided the design meets "generally accepted engineering design standards" at the time of the design provided a reasonable warning is given the public regarding "unreasonably dangerous hazards" so as to allow the public to take "suitable precautions." The trial court granted the defendant summary judgment and the Court of Appeals affirmed. The statute does not require an engineering design be "state of the art" but rather meet accepted engineering standards. The county engineer testified that this culvert was designed to withstand 25 year floods which was and remains today the "generally accepted engineering standard." Notably the plaintiff had no controverting evidence. Further the warning was reasonable as a matter of law as it told the plaintiffs unequivocally that flooding could occur. The statute did not mandate the government tell the public what precautions would be suitable to take as a result. Finally, the court held that plaintiffs belated plea that more time was needed to do discovery to refute the evidence presented in support of the summary judgment motion was untimely. Rule 56 (f) of the Arizona Rules of Civil Procedure requires the opposing party affirmatively request a continuance of the summary judgment hearing to acquire discovery and affidavits before a decision is made by the trial court.