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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                       DEBORAH TOURTILLOT, et al.,
                      Plaintiffs/Appellants/Cross-Appellees,

                                         v.

                             YUMA COUNTY,
                      Defendant/Appellee/Cross-Appellant.

                              No. 1 CA-CV 17-0769
                               FILED 1-15-2019


            Appeal from the Superior Court in Maricopa County
                           No. CV2015-091608
               The Honorable David M. Talamante, Judge

    AFFIRMED IN PART; VACATED IN PART; AND REMANDED


                                    COUNSEL

Karnas Law Firm, P.L.L.C, Tucson
By M. David Karnas
Co-Counsel for Plaintiffs/Appellants/Cross-Appellees Deborah Tourtillot, John
Tourtillot, Alora Dugan, Angelene Cabrales, Kirby Dugan, Brandon Phillips,
and Lorena Tambo
Davis Miles McGuire Gardner, P.L.L.C, Tempe
By Michael E. Medina Jr.
Co-Counsel for Plaintiffs/Appellants/Cross-Appellees Deborah Tourtillot, John
Tourtillot, Alora Dugan, Angelene Cabrales, Kirby Dugan, Brandon Phillips,
and Lorena Tambo


Law Offices of C. Candy Camarena, Yuma
By Cornelius C. Camarena
Counsel for Plaintiffs/Appellants/Cross-Appellees Milson Jose, Josephine Kolb,
Loki Morrow, Linus Morrow, Deena Morrow, and Hannah Morrow

Jones Skelton & Hochuli, P.L.C., Phoenix
By Michele Molinario, Diana J. Elston, Justin M. Ackerman
Counsel for Defendant/Appellee/Cross-Appellant


                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig
joined.


J O N E S, Judge:

¶1             Appellants challenge the trial court’s entry of judgment in
favor of Yuma County (the County) after finding it statutorily immune
pursuant to Arizona Revised Statutes (A.R.S.) § 12-820.01.1 The County
cross-appeals from the denial of a separate motion for summary judgment
alleging it is entitled to judgment as a matter of law upon its affirmative
defense under A.R.S. § 12-820.03. For the following reasons, we conclude
the County is not statutorily immune and genuine issues of material fact
exist regarding the applicability of the affirmative defense. Accordingly,
we vacate the order of dismissal, affirm the denial of the alternate motion
for summary judgment, and remand for further proceedings.




1     Absent material changes from the relevant date, we cite a statute’s
current version.


                                        2
                  TOURTILLOT, et al. v. YUMA COUNTY
                         Decision of the Court

                 FACTS AND PROCEDURAL HISTORY

¶2             Appellants are the survivors of three people (the Decedents)
killed in a traffic accident at the intersection of West County 9th Street and
South Avenue D in Yuma (the Intersection). At the time of the accident, the
east- and westbound traffic on County 9th Street was controlled with
oversized 48-inch stop signs, signs warning of the upcoming stop signs, and
flashing beacons with signs cautioning that “Cross Traffic Does Not Stop.”
The traffic on Avenue D was not required to stop and was not warned of
the Intersection. The posted speed limit was thirty-five miles per hour on
Avenue D and westbound County 9th Street and fifty miles per hour on
eastbound County 9th Street.

¶3            In April 2013, the Decedents’ vehicle approached the
Intersection on County 9th Street from the west. After stopping at the
Intersection and then attempting to cross, the vehicle was struck by a pick-
up truck traveling southbound on Avenue D at nearly twenty miles per
hour above the posted speed limit. Appellants filed wrongful death claims
against the County alleging the County’s negligent design, placement,
maintenance, and operation of traffic-control devices at the Intersection
caused the accident and resulting fatalities. In their complaint, Appellants
alleged both that the County should have installed a multiway stop at the
Intersection and that the speed on Avenue D was not properly controlled.

¶4            In January 2017, the County filed two dispositive motions.
The first argued the County was absolutely immune from liability for
legislative and fundamental government policy decisions pursuant to
A.R.S. § 12-820.01; the second argued the County was not subject to liability
for injuries arising from road maintenance or improvement pursuant to
A.R.S. § 12-820.03.

¶5            The evidence, viewed in the light most favorable to
Appellants, Compassionate Care Dispensary, Inc. v. Ariz. Dep’t of Health Servs.,
244 Ariz. 205, 209, ¶ 3 n.2 (App. 2018) (quoting City of Tempe v. State, 237
Ariz. 360, 362, ¶ 1 n.3 (App. 2015)),2 reflects that the County has adopted a
roadway analysis process.        Through this process, various County


2      We reject the County’s suggestion that this Court is bound to accept
its version of the facts because its statement of facts was not properly
opposed. The unreported federal cases upon which the County relies are
unpersuasive and represent a draconian departure from the traditional
notions of notice and fairness that have always been the standard of this
Court.


                                       3
                 TOURTILLOT, et al. v. YUMA COUNTY
                        Decision of the Court

employees and committees periodically collect and compile traffic accident
data, which the County then reviews before commissioning engineering
studies to determine whether improvements are necessary to keep
roadways within its jurisdiction safe.        Thereafter, major roadway
improvements are subject to approval and funding by the County’s board
of supervisors (the Board). Once implemented, the County monitors the
changes to assess their impact upon traffic accidents.

¶6             The County first employed a traffic engineering consultant to
evaluate the safety of the Intersection after observing an increase in
accidents in 1990. Although traffic at the Intersection was, at that time,
controlled solely by standard-sized stop signs facing the east- and
westbound traffic on County 9th Street, the County determined further
intervention was not warranted. After a second study (the 2000 Traffic
Study), the County chose, with approval and funding from the Board, to
install oversized stop signs with flashing beacons on the County 9th Street
approaches. In 2008, without having commissioned another study, the
County placed warnings on the existing stop signs on County 9th Street that
“Cross Traffic Does Not Stop.”

¶7            To support its motions for summary judgment, the County
presented expert testimony that the Intersection “was designed,
constructed and maintained consistent with generally accepted engineering
and design standards at the time.” The expert opined that the Decedents’
accident was caused by human factors alone, with no contribution from
roadway or vehicle factors. Appellant submitted a competing opinion that
the implementation of a four-way stop was “the only reasonable
countermeasure” to address the accidents that continued to occur at the
Intersection each year.

¶8              After taking the matter under advisement, the trial court
granted the County’s first motion for summary judgment and denied the
second. Appellants appealed the final judgment, and the County cross-
appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1)
and -2101(A)(1). See also Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 316,
¶ 7 (App. 1998) (holding that although an order denying summary
judgment is generally not appealable, the court may review the order along
with one granting summary judgment “to avoid piecemeal litigation”)
(citing Mealey v. Orlich, 120 Ariz. 321, 321 (1978), and State Farm Mut. Auto.
Ins. v. Peaton, 168 Ariz. 184, 194 (App. 1990)).




                                      4
                    TOURTILLOT, et al. v. YUMA COUNTY
                           Decision of the Court

                                  DISCUSSION

I.     Motion for Summary Judgment No. 1: Absolute Immunity Under
       A.R.S. § 12-820.01

¶9            Appellants argue the trial court erred in finding the County
absolutely immune because the County’s decisions to approve, fund, and
maintain improvements to the Intersection are not entitled to legislative or
administrative function immunity.            The existence and scope of
governmental immunity present questions of law subject to de novo review.
Tostado v. City of Lake Havasu, 220 Ariz. 195, 198, ¶ 12 (App. 2008) (citing
Link v. Pima Cty., 193 Ariz. 336, 341, ¶ 18 (App. 1998)).

¶10             Generally, “governmental immunity is the exception and
liability is the rule.” Id. (citing AlliedSignal, Inc. v. City of Phoenix, 182 F.3d
692, 694 (9th Cir. 1999)). Nonetheless, “a narrow exception to the general
rule” exists in A.R.S. § 12-820.01(A):

       A public entity shall not be liable for acts and omissions of its
       employees constituting either of the following:

               1.      The exercise of a judicial or legislative function.

               2.      The exercise of an administrative function
                       involving the determination of fundamental
                       governmental policy.

See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 164 (quoting
Goss v. City of Globe, 180 Ariz. 229, 232 (App. 1994)). The burden to prove
the statute’s applicability rests with the public entity asserting immunity.
AlliedSignal, 182 F.3d at 695 (citing Fid. Sec. Life Ins. v. State, Dep’t of Ins., 191
Ariz. 222, 225, ¶ 9 (1998)). We construe A.R.S. § 12-820.01(A) narrowly and
will find immunity only if the statute “clearly applies.” Schabel, 186 Ariz.
at 164; Cty. of La Paz v. Yakima Compost Co., 224 Ariz. 590, 603, ¶ 34 (App.
2010) (citing Doe ex rel. Doe v. State, 200 Ariz. 174, 176, ¶ 4 (2001)).

       A.      Legislative Function Immunity

¶11           A public entity is immune from suit for acts or omissions
involving the exercise of a legislative function. A.R.S. § 12-820.01(A)(1).
“The County exercises its ‘legislative function’ by creating, defining, or
regulating rights,” Yakima Compost, 224 Ariz. at 603, ¶ 35 (citations omitted),
or prescribing a new plan or policy, Wennerstrom v. City of Mesa, 169 Ariz.
485, 489 (1991) (quotation omitted). Appellants argue the Board’s decision


                                          5
                  TOURTILLOT, et al. v. YUMA COUNTY
                         Decision of the Court

to approve specific traffic-control measures at a specific intersection is not
a legislative function.3 We agree.

¶12           Although a municipal-level decision to adopt a street-
improvement policy or to fund street construction generally is a legislative
act, Wennerstrom, 169 Ariz. at 495; see also Kohl v. City of Phoenix, 215 Ariz.
291, 294-95, ¶¶ 9, 14-15 (2007), the approval of a specific project that carries
out the existing policy is not, Wennerstrom, 169 Ariz. at 495 (noting the
project at issue “merely carrie[d] out the [previously approved street-
improvement] policy” and did not qualify as a legislative act). See also Galati
v. Lake Havasu City, 186 Ariz. 131, 136 (App. 1996) (distinguishing between
immune funding decisions and non-immune spending decisions). Here,
the County’s improvements to the Intersection merely carried out an
existing policy, and thus, the County was not performing a legislative
function and is not protected from liability under A.R.S. § 12-820.01(A)(1).

       B.     Administrative Function Immunity

¶13            Governmental immunity also attaches to “the exercise of an
administrative function involving the determination of fundamental
governmental policy.”           A.R.S. § 12-820.01(A)(2).        Fundamental
governmental policy involves the exercise of discretion and includes, inter
alia, “[a] determination of whether to seek or whether to provide the
resources necessary for . . . [t]he construction or maintenance of facilities,”
and “[a] determination of whether and how to spend existing resources.”
A.R.S. § 12-820.01(B)(1)(b), (2); see also A Tumbling-T Ranches v. Flood Control
Dist. of Maricopa Cty., 222 Ariz. 515, 537, ¶ 66 (App. 2009) (citing Kohl, 215
Ariz. at 295, ¶ 15).

¶14        The County argues that allocating funds for road
maintenance and safety projects constitutes the determination of
fundamental governmental policy. However, “public administrative


3       The County argues Appellants waived this argument, and others, by
failing to raise it in the trial court. But the court cannot misapply the law
simply because a summary judgment motion is not properly opposed. See
Ariz. R. Civ. P. 56(e) (“If the opposing party does not . . . respond, summary
judgment if appropriate, shall be entered against that party.”) (emphasis
added). Additionally, “when we are considering the interpretation and
application of statutes, we do not believe we can be limited to the
arguments made by the parties if that would cause us to reach an incorrect
result.” Evenstad v. State, 178 Ariz. 578, 582 (App. 1993) (citing Rubens v.
Costello, 75 Ariz. 5, 9 (1952)).


                                       6
                  TOURTILLOT, et al. v. YUMA COUNTY
                         Decision of the Court

bodies make many decisions concerning allocation and expenditure of
funds that could not be categorized as decisions involving the
determination of fundamental governmental policy.” Schabel, 186 Ariz. at
165. Indeed, the County’s broad proposition “runs counter to the
recognized principle that immunity statutes are to be narrowly construed.”
A Tumbling-T, 222 Ariz. at 537, ¶ 67); see also Schabel, 186 Ariz. at 165-66
(“Were every governmental decision to allocate or expend funds protected
by absolute immunity, immunity would be the rule and liability the
exception. Such a state of affairs would contradict express legislative intent
and our common law.”); Galati, 186 Ariz. at 136 (“[W]e decline to construe
the immunity statutes to give a city absolute immunity for all actions
affected by its spending priorities.”).

¶15           To account for Arizona’s preference for governmental
liability:

        [C]ourts [analyzing whether a particular act involves
        fundamental governmental policy] have distinguished high-
        level policymaking decisions, which include promulgating
        rules and regulations, from operational decisions, which
        more often involve day-to-day implementation of a
        regulatory scheme. Policymaking decisions are absolutely
        immune, while operational decisions implementing such
        policy are not, even where they involve the exercise of some
        discretion. Hence, the relevant inquiry is whether the
        [government]’s decisions were limited to policymaking
        decisions or whether they also included operational decisions
        and exposed the [government] to tort liability.

A Tumbling-T, 222 Ariz. at 537, ¶ 67 (citing Kohl, 215 Ariz. at 295-96, ¶¶ 19-
21); accord Warrington ex rel. Warrington v. Tempe Elementary Sch. Dist. No. 3,
187 Ariz. 249, 252 (App. 1996) (quoting Evenstad, 178 Ariz. at 582). Thus,
the statute provides immunity only for “such matters as a decision as to the
direction and focus” of an objective, but not for operational actions and
decisions necessary to implement the chosen objectives. Doe, 200 Ariz. at
176, ¶ 6 (quoting Fid. Sec., 191 Ariz. at 225, ¶ 11).

¶16          For example, in A Tumbling-T, a county flood control district
argued its decision to construct flood-control projects on the Gila River
involved the exercise of fundamental governmental policy under A.R.S.
§ 12-820.01(A)(2) and exempted it from suit related to the construction of
individual projects. 222 Ariz. at 536, ¶ 64. This Court held that the
“decision to alleviate flooding . . . was undoubtedly a policymaking


                                      7
                  TOURTILLOT, et al. v. YUMA COUNTY
                         Decision of the Court

decision, involving the expenditure of significant funds and also
coordination with the governor’s office as well as various state and federal
agencies.” Id. at 537, ¶ 68. However, “the [d]istrict’s implementation of its
overall flood-control plan was operational in that it involved the exercise of
professional engineering judgment.” Id. And while the policymaking
decision was immune, the individual operational decisions were not. Id. at
538, ¶ 72; see also Doe, 200 Ariz. at 177, ¶ 10 (explaining that decisions related
to establishing teacher certification requirements and procedures for
processing applications and investigating applicants are absolutely
immune fundamental governmental policy acts, while the processing of a
particular application in accordance with those requirements and
procedures is not); Sanchez ex rel. Gordon v. City of Tucson, 189 Ariz. 429, 432
(App. 1997) (concluding the adoption of a comprehensive roadway
illumination program constituted fundamental governmental policy
shielded by A.R.S. § 12-820.01 while “low level negligence such as failing to
erect a sign” was not), vacated in part on other grounds, 191 Ariz. 128 (1998);
Schabel, 186 Ariz. at 166 (explaining that a government entity is absolutely
immune for its decision to install a playground, but “the decisions as to
what equipment and safety measures to install would not enjoy immunity
from legal action”) (citation omitted); Warrington, 187 Ariz. at 252 (holding
that “one employee’s decision whether to place a bus stop at one point or
another [was] an operational decision, not a fundamental policy decision”).

¶17           We agree with Appellants that the County’s decision to
operate and maintain a two-way stop at the Intersection, rather than a four-
way stop, was not a decision on the direction and focus of an objective or a
high-level policymaking decision. See Rogers v. State, 459 P.2d 378, 381
(Haw. 1969) (“[S]uch matters as the kinds of road signs to place and where
to place them, and which center line stripings to repaint and when to
repaint them, did not require evaluation of policies but involved
implementation of decisions made in everyday operation of governmental
affairs.”). The decision was simply one of many day-to-day acts taken by
the County, through its agents and the Board, to further the County’s larger
policy-driven roadway analysis process. Accordingly, the decision to
maintain a two-way stop at the Intersection was an operational decision not
subject to immunity under A.R.S. § 12-820.01(A)(2).

¶18            The County relies heavily upon the fact that the decision
regarding the particular countermeasure to be employed at a particular
intersection involves “judgment, discretion, [and] weighing of
alternatives.” Warrington, 187 Ariz. at 253 (quoting Hanson ex rel. Hanson v.
Vigo Cty. Bd. of Comm’rs, 659 N.E.2d 1123, 1125-26 (Ind. Ct. App. 1996)). But



                                        8
                 TOURTILLOT, et al. v. YUMA COUNTY
                        Decision of the Court

the exercise of discretion is important only to the extent it is used to
formulate policy:

       Even where discretion is exercised, administrative decisions
       within government do not necessarily involve determinations
       of fundamental governmental policy. To be absolutely
       immune, therefore, fundamental governmental policy is the
       element which, first and foremost, must be present in the
       decision making process. . . . The term “discretion” is used in
       the statute only to define an essential characteristic of
       determinations involving fundamental governmental policy.

Fid. Sec., 191 Ariz. at 225, ¶ 10; see also Greathouse v. Armstrong, 616 N.E.2d
364, 366-67 (Ind. 1993) (“The critical inquiry associated with the test [for
distinguishing decisions involving the formulation of basic policy from
those involving only the execution or implementation of that policy] is ‘not
merely whether judgment was exercised but whether the nature of the
judgment called for policy considerations.’”) (quotation omitted). The fact
that County employees could and did exercise professional judgment in
deciding between competing countermeasures at a particular location does
not change the nature of the decision from operational to policymaking. To
the contrary, the need for professional judgment reinforces the character of
the decision as operational. See Warrington, 187 Ariz. at 253 (concluding a
school district was not immunized from liability for the placement of
individual bus stops where the placement decision was made by an
employee, in the exercise of his discretion, as part of the day-to-day
performance of his job).

¶19           We likewise reject the suggestion that the County’s decision
is immune under A.R.S. § 12-820.01(A)(2) because it implicates a policy
decision to “avoid[] implementing too many 4-way stop signs.” There is no
evidence indicating the County adopted a policy against multiway stops.
Moreover, although the adoption of such a policy might be immune, as
explained above, its application remains operational.

¶20            The County also relies upon Kohl to argue it is nonetheless
entitled to immunity for its operational decision as it “flowed directly from”
the decision to implement a roadway analysis process. The County errs in
relying upon Kohl under the facts of this case. In Kohl, the plaintiffs sued
the City of Phoenix for wrongful death after their teenage son was killed in
an automobile accident at an intersection without a traffic signal. Kohl, 215
Ariz. at 292, ¶ 2. Our supreme court found the municipality was absolutely
immune from suit where the allegation of negligence in failing to install a


                                      9
                  TOURTILLOT, et al. v. YUMA COUNTY
                         Decision of the Court

traffic signal depended entirely upon the municipality’s policy-level
decision defining how it would identify and prioritize dangerous
intersections for signalization. Id. at 296-97, ¶¶ 23, 26. Because the
intersection at issue was never identified as a priority, the municipality
never had the opportunity to exercise its own engineering judgment. Id. at
293, 296, ¶¶ 7, 23. Therefore, the decision (or lack thereof) to place a traffic
signal at that intersection “flowed directly from” the immune policy
decision and was not operational. Id.

¶21           Unlike Kohl, the County’s decision to install a particular
countermeasure at the Intersection here did not flow automatically from a
policymaking decision to monitor and investigate traffic accidents within
the County’s jurisdiction. Rather, the County exercised independent
judgment when it chose to evaluate the conditions surrounding the
Intersection and select from among the available countermeasures. This
operational decision is not immunized as part of the fundamental
policymaking roadway analysis process.

¶22           In the absence of immunity, the County remains liable if it
breaches its duty to maintain its roadways in a reasonably safe condition.
Goss, 180 Ariz. at 232-33. The extent of the County’s knowledge and
whether it acted reasonably in choosing not to employ a multiway stop are
disputed questions of fact precluding summary judgment in favor of either
party. See id. at 233; Bach v. State, 152 Ariz. 145, 147 (App. 1986) (“What is
reasonable on the one hand and negligent on the other will depend upon
the particular facts of the case. The general rule is that ‘where reasonable
people could differ . . . the question of negligence is one of fact for a jury to
decide.’”) (quoting Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 357-58 (1985)).
Accordingly, the judgment in favor of the County is vacated.

II.    Motion for Summary Judgment No. 2: Affirmative Defense Under
       A.R.S. § 12-820.03

¶23            On cross-appeal, the County argues the trial court erred in
finding it failed to establish an affirmative defense to Appellants’ claims
pursuant to A.R.S. § 12-820.03(A) as a matter of law. That statute provides:

       A public entity or a public employee is not liable for an injury
       arising out of a plan or design for construction or maintenance
       of or improvement to transportation facilities, including
       highways, roads, streets, bridges or rights-of-way, if the plan
       or design is prepared in conformance with generally accepted
       engineering or design standards in effect at the time of the



                                       10
                  TOURTILLOT, et al. v. YUMA COUNTY
                         Decision of the Court

       preparation of the plan or design and the public entity or
       public employee gives to the public a reasonably adequate
       warning of any unreasonably dangerous hazards which
       would allow the public to take suitable precautions.

A.R.S. § 12-820.03(A). We construe A.R.S. § 12-820.03 narrowly. Glazer v.
State, 237 Ariz. 160, 163, ¶ 12 (2015) (citing Doe, 200 Ariz. at 176, ¶ 4).

¶24            Summary judgment on the County’s affirmative defense is
appropriate if “there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a); accord A.R.S. § 12-820.03(B) (“If a genuine issue of material fact exists
as to whether the public entity or public employee has met the requirements
of subsection A of this section, the issue shall be resolved by a trial before
and separate and apart from a trial on damages.”). We review the order
denying a motion for summary judgment de novo. Glazer, 237 Ariz. at 167,
¶ 29 (citing Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990)). To successfully
invoke the affirmative defense found within A.R.S. § 12-820.03(A), the
County must prove all of its elements, including that “the plan or design
conformed to engineering or design standards generally accepted when the
plan or design was prepared,” Glazer, 237 Ariz. at 164, ¶ 13 (citing Hegel v.
O’Malley Ins., 122 Ariz. 52, 56 (1979)), which the parties generally agree are
set forth in the Manual on Uniform Traffic Control Devices for Streets and
Highways (MUTCD), see Fed. Highway Admin., U.S. Dep’t of Transp.,
Manual on Uniform Traffic Control Devices for Streets and Highways (2009 ed.
with 2012 revs.), as supplemented by the Traffic Control Devices Handbook
(Handbook), see Inst. of Transp. Engineers, Traffic Control Devices Handbook
(Seyfried, Robert K., ed., 2d ed. 2013).4 See also 23 C.F.R. § 655.603(a)
(adopting the MUTCD as “the national standard for all traffic control
devices installed on any street . . . open to public travel”), (b) (requiring state
MUTCDs and supplements to “be in substantial conformance with the
National MUTCD”).

¶25          The County did not argue in its motion for summary
judgment that the measures adopted to monitor, control, and warn of speed
limits at the Intersection complied with generally accepted standards,
despite Appellants’ focus upon these purported deficiencies within their

4     For ease of reference, we cite the current versions of these manuals.
There have been no material changes to the relevant provisions of the
MUTCD since the date of the improvements to the Intersection, and the
County cites the current version of the Handbook without objection from
Appellant.


                                        11
                  TOURTILLOT, et al. v. YUMA COUNTY
                         Decision of the Court

complaint. Thus, to the extent Appellants’ claims arise from those
circumstances, the County has failed to establish its entitlement to
summary judgment. See United Bank of Ariz. v. Allyn, 167 Ariz. 191, 196-97
(App. 1990) (“If the [moving party]’s motion failed to make a prima facie case
. . . by omitting evidence of essential elements of its claim . . . then there was
no basis for awarding summary judgment.”).

¶26            Instead, without any mention of speed-control issues, the
County argues the traffic-control plan at the Intersection complies with
generally accepted standards because it is consistent with the MUTCD —
even though the manual does not mandate any particular traffic-control
configuration. See generally MUTCD at §§ 2B.05, 2B.07. The County bears
the burden of proof on its affirmative defense, Glazer, 237 Ariz. at 164, ¶ 13
(citing Hegel, 122 Ariz. at 56), and it cannot prove its compliance with a
standard by simply pointing out that the prevailing standard lacks rigid
requirements. Moreover, the 2000 Traffic Study the County relies upon to
support its decision to maintain the two-way stop acknowledges that a
multiway stop was warranted under the MUTCD.

¶27           The MUTCD explains that a four-way stop “can be useful as
a safety measure at intersections if certain traffic conditions exist.” MUTCD
at § 2B.07. The decision to implement a multiway stop “should be based on
an engineering study,” and may be justified if the intersection experiences
a high-volume of traffic and there is a crash problem, “as indicated by 5 or
more reported crashes in a 12-month period that are susceptible to
correction by a multiway stop installation,” such as right- and left-turn and
right-angle collisions. Id. The Handbook provides further guidance as to
when a multiway stop might be appropriate, urging adoption of “the least
restrictive appropriate form of traffic control.” Handbook at 113; see also
A.R.S. § 28-643 (granting local authorities discretion to “place and maintain
the traffic control devices on highways under their jurisdiction as they
deem necessary”).

¶28           Applying these authorities, the County describes the relevant
standard as one of choosing the best option to avoid future accidents. To
the extent the generally accepted standard for the plan or design of traffic-
control devices truly incorporates a measure of discretion in the exercise of
engineering judgment, the question as to whether the County has complied
with that standard is simply not subject to resolution via summary
judgment and must be submitted to a jury. See Bach, 152 Ariz. at 147. This
is particularly true where, as here, the parties present competing expert
testimony regarding the reasonableness of the County’s actions.



                                       12
                 TOURTILLOT, et al. v. YUMA COUNTY
                        Decision of the Court

¶29           The County nonetheless asserts it complied with the MUTCD
when it considered and rejected the multiway stop in favor of “the most
expensive and effective countermeasure” recommended within the 2000
Traffic Study. But, as Appellants point out, the cost of the countermeasure
is irrelevant to its reasonableness, and the contents of that report are
materially internally inconsistent.

¶30           The 2000 Traffic Study presents the County with four
alternatives to improving safety at the Intersection:

       1.     Install four-way stop signs on all approaches to the
              Intersection;

       2.     Deploy targeted enforcement of speeding violations
              near the Intersection;

       3.     Install flashing warning beacons on stop signs on
              minor approaches to the Intersection from County 9th
              Street; and

       4.     Buy and protect sight triangles.

On the following page, within a discussion of the accident rate reductions
anticipated for each proposal, the report explains that the third
countermeasure “involves the installation of four advanced stop ahead
warning signs supplemented with flashers on all approaches.” Indeed, the
estimated cost of the third countermeasure includes the addition of two
stop signs to the Intersection.

¶31            Given these inconsistencies within the 2000 Traffic Study, it is
unclear whether the third countermeasure contemplated traffic-control
devices at all approaches to the Intersection and whether the calculated
accident rate reduction for the third countermeasure was based upon
installation of flashers at a two- or four-way stop. The parties’ dispute over
the interpretation of the 2000 Traffic Study creates a genuine issue of
material fact as to whether the County adopted a plan “based on an
engineering study” in compliance with the MUTCD.

¶32          Under the facts of this case, a reasonable jury could conclude
the County’s design failed to comply with generally accepted standards.
Therefore, the County was not entitled to judgment as a matter of law on




                                      13
                 TOURTILLOT, et al. v. YUMA COUNTY
                        Decision of the Court

its affirmative defense, and the trial court correctly denied its motion for
summary judgment.5




                              CONCLUSION

¶33           The judgment entered in favor of the County is vacated, the
order denying the motion for summary judgment on the County’s
affirmative defense is affirmed, and the case is remanded to the trial court
for further proceedings.




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




5      Because the County did not prove its design complied with generally
accepted engineering requirements as a matter of law, we need not and do
not address the remaining elements of the defense. See A.R.S. § 12-
820.03(A).


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