                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                          MICHAEL AMSDEN, SR.,
                             Plaintiff/Appellant,

                                        v.

  BUCKEYE WATER CONSERVATION AND DRAINAGE DISTRICT,
                   Defendant/Appellee.

                             No. 1 CA-CV 17-0656
                               FILED 2-28-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV2015-054804
           The Honorable Aimee L. Anderson, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Co-Counsel for Plaintiff/Appellant

Mushkatel, Robbins & Becker, P.L.L.C., Sun City
By Zachary Evan Mushkatel
Co-Counsel for Plaintiff/Appellant

The Cavanagh Law Firm, P.A., Phoenix
By Karen C. Stafford, Cassandra V. Meyer
Counsel for Defendant/Appellee
                          AMSDEN v. BWCDD
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


C R U Z, Judge:

¶1            Michael Amsden, Sr. (“Amsden”), appeals the superior
court’s dismissal of his complaint against Buckeye Water Conservation and
Drainage District (“BWCDD”) and denial of his motion to set aside the
judgment.1 For the following reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2             On the night of April 30, 2015, Amsden observed a rollover
collision as he was driving near Rainbow and Baseline Roads in Buckeye.
Amsden pulled over to assist the injured but suffered serious injury himself
after he left his vehicle and fell into an unmarked and uncapped irrigation
box.

¶3           Amsden filed a complaint against the Town of Buckeye,
BWCDD, and Roosevelt Irrigation District. He alleged negligence and
premises liability but did not allege BWCDD’s conduct was willful or
wanton. As to BWCDD, Amsden alleged in relevant part as follows,

      . . . Defendant BWCDD was engaged in the operation of a
      business entity providing irrigation water to the public . . .

      Defendant BWCDD managed, maintained, or otherwise
      controlled the manhole . . .

      Defendant BWCDD, while operating within the scope of its
      operation as a political subdivision of the State of Arizona,
      impliedly and expressly warranted that the public, including
      the Plaintiff, would be protected against unreasonable risks of


1      BWCDD moves to strike Section Six and Appendix 1 of Amsden’s
opening brief, in which Amsden references newspaper articles not part of
the record below. Because we are confined to a review of the record, we
grant the motion. See West v. Baker, 109 Ariz. 415, 418-19 (1973).


                                     2
                   AMSDEN v. BWCDD
                   Decision of the Court

harm when utilizing the areas leading up to, around and
adjacent to its manholes. . . .

Defendant BWCDD is charged with the responsibility of
providing reasonably safe premises in the areas leading up to
and around the manhole . . . .

Defendants negligently failed to maintain the area in and
around the manhole by allowing the overgrowth of
shrubbery to obstruct its hazardous condition from the
public. . . .

one or more of the Defendants failed to warn the public,
including the Plaintiff, of the potentially hazardous
conditions in the areas leading up to and around the manhole
by failure to provide barriers, barricades, clearly marked
warning placards, caution tape in and around the area or any
other mechanism of noticing the hazardous condition. . . .

Defendants negligently failed to secure the manhole with a
covering to prevent injury to the public, including the
Plaintiff. . . .

Defendants owed a duty of care to Plaintiff and breached that
duty of care . . .

Defendants owed a duty to the public, including the Plaintiff
to keep its premises safe from dangerous conditions. . . .

Defendants had a duty to warn of the dangers posed by the
manhole . . .

Defendants’ negligence created an unreasonable risk of
bodily harm to the Plaintiff. . . .

Defendants failed to properly inspect, supervise and insure
proper maintenance, including covering over the manhole
...

Defendants created an unreasonable hazardous condition
and obstruction . . . Said risk to the public was foreseeable.
...




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                          AMSDEN v. BWCDD
                          Decision of the Court

      Defendants failed to warn the public, including the Plaintiff,
      of the danger presented by the manhole that was left obscured
      from visibility, unmarked and uncapped . . .

      Defendants failed to exercise the degree of care required
      under the circumstances. . . .

¶4            BWCDD moved for judgment on the pleadings under
Arizona Rule of Civil Procedure (“Rule”) 12(c), arguing that BWCDD was
immune from Amsden’s tort claims under the Salladay doctrine and that
BWCDD owed Amsden no duty because Amsden was a trespasser when
he entered BWCDD’s property. Salladay v. Old Dominion Copper Mining &
Smelting Co., 12 Ariz. 124 (1909); see ¶ 9 infra. In response, Amsden argued
the doctrine did not provide BWCDD immunity, and, relying on § 368 of
the Restatement (Second) of Torts, disputed whether he was a trespasser.
The superior court found the Salladay doctrine applied, and additionally,
that Amsden was a trespasser to whom BWCDD owed no duty of care. As
such, it granted BWCDD’s motion for judgment on the pleadings,
dismissing Amsden’s claims against BWCDD with prejudice under Rule
54(b).

¶5            Amsden moved to set aside the judgment under Rules 59 and
60, arguing abuse of discretion, errors of law, that the ruling was contrary
to law, and that the judgment was the result of mistake of fact and law.
Also, in the motion, Amsden argued for the first time that the Salladay
doctrine violated the Arizona Constitution and was against public policy.
After hearing argument, the court denied Amsden’s motion, ruling, inter
alia, Amsden had waived his constitutional and public-policy arguments by
failing to raise them in response to the motion for judgment on the
pleadings.

¶6          Amsden timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).




                                     4
                             AMSDEN v. BWCDD
                             Decision of the Court

                                 DISCUSSION

I.     Applicability of the Salladay Doctrine2

¶7            On appeal from a judgment on the pleadings, we review the
superior court’s legal conclusions de novo, accepting the factual allegations
of the complaint as true. Mobile Cmty. Council for Progress, Inc. v. Brock, 211
Ariz. 196, 198, ¶ 5 (App. 2005). We review the denial of a Rule 59 motion
for new trial and Rule 60 motion for relief from judgment for an abuse of
discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328 (1985) (Rule 60);
Mullin v. Brown, 210 Ariz. 545, 547, ¶ 2 (App. 2005) (Rule 59).

¶8           Amsden argues the superior court erred in granting
BWCDD’s motion for judgment on the pleadings on the basis of the Salladay
doctrine because he was a licensee upon the property and not a trespasser.
Because he was a licensee, Amsden’s argument goes, BWCDD owed him a
duty of reasonable care.

¶9             Under the Salladay doctrine, irrigation districts are “almost
complete[ly]” immune in their maintenance of canals, diversion points, and
equipment needed to operate a water distribution system. Dombrowski v.
Maricopa Cty. Mun. Water Conservation Dist. No. 1, 108 Ariz. 275, 276 (1972);
see Salladay, 12 Ariz. at 129-30; Salt River Valley Water Users’ Ass’n v. Superior
Court, 178 Ariz. 70, 75-76 (App. 1993) (Salladay is limited exception to
attractive nuisance doctrine because irrigation systems are “indispensable
for the maintenance of life and prosperity” and, while dangerous and
alluring to children, they are also “practically impossible to render
harmless”). In Arizona the rule is well settled “that it is not negligence to
carry water for farming purposes in an open ditch or open flume.” City of
Glendale v. Sutter, 54 Ariz. 326, 330 (1939). Salladay established a public
policy that confers immunity upon BWCDD that shields it, absent willful
or wanton conduct, from any liability for failing to protect trespassers—
young or old—from the open irrigation box. In assessing whether a person
is a trespasser, “[t]he determining fact is the presence or absence of a
privilege to enter or to remain on the land, and the status of an accidental
trespasser is still that of a trespasser.” Hersey v. Salt River Valley Water Users’
Ass’n, 10 Ariz. App. 321, 325 (App. 1969).



2      On appeal Amsden argues the Salladay doctrine violates the Arizona
Constitution. Because he did not challenge the constitutionality of the
doctrine in the superior court, the argument is waived on appeal and we do
not address it. Conant v. Whitney, 190 Ariz. 290, 293 (App. 1997).


                                        5
                           AMSDEN v. BWCDD
                           Decision of the Court

¶10           Salladay bars Amsden’s claim. BWCDD was engaged in the
operation of providing irrigation water to the public in the Buckeye Valley.
In that capacity BWCDD managed, maintained, or otherwise controlled the
irrigation box into which Amsden so unfortunately fell and was injured.
Amsden, though well-intentioned, purposefully entered the land without a
privilege to enter or remain therein. As such, he was a trespasser, and
BWCDD is immune from his negligence claim.

II.    Restatement (Second) of Torts §§ 197, 332, 345

¶11            Amsden also argues that, as a rescuer of other travelers, he
was privileged to enter the land such that BWCDD owed him the same duty
of reasonable care it would owe a licensee. See Restatement (Second) of
Torts § 197 (1965) (privilege to enter land to prevent serious harm to
another); see also § 332 (invitee defined). Section 345 states, in part, that,

       the liability of a possessor of land to one who enters the land
       only in the exercise of a privilege, for either a public or a
       private purpose, and irrespective of the possessor’s consent,
       is the same as the liability to a licensee.

Restatement (Second) of Torts § 345 (1965). However, the possessor owes a
duty under this provision only if the possessor knows or has “reason to
anticipate that the visitor is upon the land, or will enter in the exercise of
his privilege, and that he will be endangered by the condition.” Id. at § 345
cmt. d. “When the possessor, as in the present case, knows of the licensee’s
presence on his premises his duty requires that he exercise ordinary care to
avoid injuring him.” W. Truck Lines v. Du Vaull, 57 Ariz. 199, 205 (1941).
Amsden does not argue that BWCDD knew he was on its property but
argues that it should have anticipated a pedestrian might be there because
there are no sidewalks, paths or crosswalks nearby. He cites no authority
for the proposition, however, that a possessor of land has reason to
anticipate that a pedestrian may be privileged to come onto property
adjacent to a highway in an isolated area simply because the highway does
not have a right-of-way that accommodates foot traffic. Therefore, we hold
BWCDD had no duty under § 345 to warn Amsden of the open irrigation
box.

III.   Restatement (Second) of Torts § 368

¶12            Similarly, Amsden argues BWCDD owed him a duty of care
under § 368 of Restatement (Second) of Torts because it was foreseeable that
he would deviate from his travel on the highway to assist another motorist
in peril. Section 368 provides that,


                                      6
                           AMSDEN v. BWCDD
                           Decision of the Court

       A possessor of land who creates or permits to remain thereon
       an excavation or other artificial condition so near an existing
       highway that he realizes or should realize that it involves an
       unreasonable risk to others accidentally brought into contact
       with such condition while traveling with reasonable care
       upon the highway, is subject to liability for physical harm
       thereby caused to persons who (a) are traveling on the
       highway, or (b) foreseeably deviate from it in the ordinary
       course of travel.

Restatement (Second) of Torts § 368 (1965). Section 368 is unavailing in this
case because immunity under the Salladay doctrine would bar relief.

¶13            In Hersey, a child drowned after the car in which she was
traveling rolled, throwing her into an irrigation canal. 10 Ariz. App. at 323.
On appeal from a judgment for the irrigation project after the girl’s parents
sued, the court began by noting that, as a general proposition, “a possessor
of land has no duty to a trespasser except to refrain from willful and wanton
negligence[.]” Id. at 323. The court identified Restatement (Second) of Torts
§ 368 as a possible exception to that rule. Id. at 324-25. But the court held
that even if § 368 might apply, the claim was barred under Salladay, and we
must reach the same conclusion here. Id. at 327.

¶14           For the foregoing reasons, we find the superior court did not
err in granting BWCDD’s motion for judgment on the pleadings and later
denying Amsden’s Rule 59 and Rule 60 motions. As the prevailing party,
BWCDD is entitled to its costs on appeal upon compliance with ARCAP 21.

                              CONCLUSION

¶15           We therefore affirm.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA




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