Tostado’s son, Mark, drowned in the Bridgewater Channel (the “Channel”) atLakeHavasu. The medical examiner concluded that Mark died because he was overcome by carbon monoxide while swimming in the Channel. Prior to Mark’s death, the City of Lake Havasu (the “City”) had been repeatedly advised of high CO levels in the Channel and the local press had published the results of an independent study, commissioned by a local doctor, confirming high CO levels in the Channel. Though the City subsequently ordered further study of the CO levels in the Channel, it took no other steps to warn swimmers or to limit boating traffic (which was presumably the source of CO).
Tostado brought a wrongful death action against the City, and the City moved for summary judgment arguing, among other things, that it was absolutely immune from suit for its legislative decisions not to warn the public further or restrict boating access in the Channel. In response, Tostado asked the court to take judicial notice of U.S. District Judge Wake’s decision in Heck v. City of Lake Havasu, in which he denied summary judgment on a similar claim. The superior court refused to take judicial notice of the decision and granted the City’s motion on absolute immunity grounds.
Tostado appealed and the Court of Appeals reversed. First, discussing potential legislative immunity under ARS §12-820.01, the Court noted that statutes enacted after Mark’s death could not be considered in determining whether the City was entitled to legislative immunity. The Court further explained that the City’s failure to act prior to Mark’s death could not be considered an actual legislative decision meriting immunity because the City could not “point to any evidence that it made an actual decision regarding whether to enact an ordinance.” Rather, explained the Court, the City simply took no action at all. See Galati v.Lake Havasu City, 186Ariz. 131, 134 (App. 1996).
The Court also addressed the City’s argument that its decisions and actions regarding CO at the Channel were “administrative functions” entitling it to immunity under ARS §12-820.01(A)(2),(B). Citing again toGalati, the Court explained that because no actual decision-making occurred regarding whether to enact regulations regarding CO at the Channel, the City could claim no immunity from liability on this ground.
Finally, Tostado had argued that there was a triable issue of fact regarding whether the City owed Mark a duty of care. Though not relied on by the superior court, the Court of Appeals considered this issue consistent with its power to affirm on any ground supported by the record. Here, relying on the Restatement (2d) of Torts, the Court explained that there was, at least, a triable issue of fact regarding whether the City “possesses” the Channel such that it owed a duty of care to invitees at the Channel. The Court further held that Mark was an “invitee” as required to make out a claim for negligence.
Judge Weisberg authored the opinion in which Judges Portley and Norris concurred.