Myers v. City of Tempe

SUPREME COURT OF ARIZONA
En Banc

RICHEY MYERS, surviving husband ) Arizona Supreme Court
of Jo Ann Myers, deceased, on ) No. CV-05-0154-PR
his own behalf and on behalf of )
Laura Myers and Mark Myers, ) Court of Appeals
surviving children of Jo Ann ) Division One
Myers, deceased, ) No. 1 CA-CV 04-0336
)
Plaintiffs-Appellants, ) Maricopa County
) Superior Court
) No. CV 03-007595
v. )
)
CITY OF TEMPE, an Arizona )
municipal corporation, ) O P I N I O N
)
Defendant-Appellee. )
)
__________________________________)

Appeal from the Superior Court of Maricopa County
No. CV 03-007595
The Honorable Anna M. Baca
AFFIRMED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One
No. 1 CA-CV 04-0336
VACATED
________________________________________________________________

WINTON D. WOODS & ASSOCIATES, PLLC Scottsdale
By Winton D. Woods, III
Attorneys for Richey Myers

TEMPE CITY ATTORNEY’S OFFICE Tempe
By Marlene A. Pontrelli Maerowitz, City Attorney
Andrew B. Ching
Attorneys for City of Tempe

LEAGUE OF ARIZONA CITIES AND TOWNS Tempe
By David R. Merkel, General Counsel
Attorney for Amicus Curiae
________________________________________________________________
M c G R E G O R, Chief Justice

¶1 This case requires us to determine whether the City of

Tempe may be held liable for the alleged negligence of the

Guadalupe Fire Department (GFD) when, in compliance with an

automatic aid agreement, GFD responded to Jo Ann Myers’ medical

emergency. We conclude that Arizona Revised Statutes (A.R.S.)

section 12-820.01 (2003) provides absolute immunity both to

Tempe’s decision to enter into the agreement and to the

automatic dispatch of GFD. We further conclude that because

Tempe delegated its duty to provide emergency services, the city

cannot be held vicariously liable for the actions of another

municipality’s fire department. Therefore, we vacate the court

of appeals’ memorandum decision and affirm the superior court’s

order granting summary judgment in Tempe’s favor.

I.

¶2 Tempe, Guadalupe, and five other municipalities

participate in the East Valley Automatic Aid Agreement for Fire

Protection and Other Emergency Services (the AAA). The

municipalities entered into the AAA “to continue and improve the

nature and coordination of emergency assistance to incidents

that threaten loss of life or property within the geographic

boundaries of their respective jurisdictions.” The agreement

requires participants to provide an Automatic Vehicle Location

System and a computerized Geographic Information System that,

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used together, “allow the dispatch system to match the closest

response unit to the emergency” and then to dispatch that unit,

notwithstanding that the emergency may be in a municipality

other than the one in which the dispatched unit is located.

Tempe city officials, advised by Tempe’s Fire Chief and

Assistant Fire Chief, expressly decided the advantages of

entering into the agreement outweighed the risks.

¶3 On July 31, 2002, Jo Ann Myers experienced an “asthma-

like attack” while in Tempe. In accordance with the AAA, the

closest fire unit, which was from GFD, responded to Ms. Myers’

emergency. GFD allegedly intubated Ms. Myers improperly,

ultimately causing her death.

¶4 On April 22, 2003, Richey Myers (Myers), Jo Ann Myers’

surviving spouse, brought suit against the City of Tempe, as

well as the Town of Guadalupe and the members of GFD who

responded to the call, alleging that GFD’s gross negligence

caused Ms. Myers’ death. Myers claimed that Tempe was

responsible for his wife’s death because it “had a non-delegable

duty [to provide emergency medical services] to persons within

its borders, including Jo Ann Myers.” Tempe moved for summary

judgment, arguing that it could delegate any duty to provide

emergency care within its borders and that A.R.S. § 12-

820.01.A.2 affords the city absolute immunity for its decision

to make such a delegation. The trial court concluded that

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because “Plaintiff’s action is premised on Defendant’s

‘fundamental policy decision’ to enter into the AAA,” the city

was entitled to absolute immunity.

¶5 The court of appeals reversed, noting that “Tempe is

not absolutely immune for actions and decisions made in the

course of implementing the emergency response services allowed

by the AAA.” The court of appeals also held that, under A.R.S.

§ 11-952.C (2003), “Tempe cannot relieve itself of liability for

providing emergency services by delegating its obligation to

provide those services to other entities through the AAA.”

¶6 We granted review to resolve these issues of statewide

importance. See ARCAP 23(c). We exercise jurisdiction pursuant

to Article 6, Section 5.3, of the Arizona Constitution.

II.

¶7 Because we are reviewing a summary judgment, “we view

the evidence in a light most favorable to the party opposing

it.” Hill-Shafer P’ship v. Chilson Family Trust, 165 Ariz. 469,

472, 799 P.2d 810, 813 (1990). We will assume, for purposes of

our review, that the evidence is sufficient to support a finding

that GFD was grossly negligent. See id. (“Summary judgment is

appropriate when there is no substantial evidence to support an

alleged factual dispute, either because the tendered evidence is

too incredible to be accepted by reasonable minds, or because,

even conceding its truth, it leads to an inevitable legal

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conclusion against its proponent.”).

¶8 Three decisions could establish a basis for Tempe’s

liability. The first is Tempe’s decision to enter into the AAA.

The second is the decision to dispatch GFD to Ms. Myers’

emergency. The third is GFD’s decision to provide the specific

care it gave Ms. Myers. The first two decisions implicate the

reach of Tempe’s absolute immunity. The third decision

implicates Tempe’s vicarious liability.

A.

¶9 Deciding whether Tempe is absolutely immune involves

statutory interpretation and is subject to this Court’s de novo

review. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177

Ariz. 526, 529, 869 P.2d 500, 503 (1994). Section 12-820.01.A

provides:

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.

Tempe makes no claim that any of its actions in this matter

involve judicial or legislative functions. We focus our

inquiry, therefore, on whether Tempe’s challenged actions

involve “[t]he exercise of an administrative function involving

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the determination of fundamental governmental policy.” See

A.R.S. § 12-820.01.A.2.

1.

¶10 The first of Tempe’s decisions that could give rise to

this action is the decision to enter into the AAA. That

decision indisputably determined fundamental governmental

policy: It involved weighing risks and gains, concerned the

distribution of resources and assets, and required consulting

the city’s subject matter experts. See A.R.S. § 12-820.01.B;

Doe v. State, 200 Ariz. 174, 176 ¶ 6, 24 P.3d 1269, 1271 (2001)

(noting that the statute “provides immunity for ‘such matters as

. . . a decision as to the direction and focus of an entire

regulatory scheme’”) (quoting Fidelity Sec. Life Ins. Co. v.

State, 191 Ariz. 222, 225 ¶ 11, 954 P.2d 580, 583 (1998)). Myers

recognizes that absolute immunity protects this decision.

2.

¶11 The second “decision” that conceivably could provide a

basis for Tempe’s liability involves the decision to dispatch

GFD, rather than some other emergency unit, to respond to Jo Ann

Myers’ emergency. The court of appeals concluded that absolute

immunity does not protect this decision because it was an

implementing decision, rather than “[t]he exercise of an

administrative function involving the determination of

fundamental governmental policy.” See A.R.S. § 12-820.01.A.2.

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¶12 Myers correctly argues that we give great weight to

the statute’s limiting phrase, “determination of fundamental

governmental policy,” and have not extended absolute immunity to

actions that merely implement a fundamental policy, even when

those actions are themselves decisions involving some level of

discretion. See, e.g., Fidelity, 191 Ariz. at 225–26 ¶¶ 10–12,

954 P.2d at 583–84 (holding that the Arizona Department of

Insurance’s decision to grant a company’s application for

transfer of domicile was not entitled to absolute immunity, even

though it involved some discretion, because the decision merely

implemented a policy). This case, however, does not involve an

implementing decision. The terms of the AAA determined, without

the need for any additional implementing decision, which

emergency unit would respond to Ms. Myers’ call for help. The

Automated Vehicle Location System, working in conjunction with

the Geographic Information System, identified the emergency unit

nearest Ms. Myers, and the dispatcher sent that unit. Tempe’s

participation in the AAA and the terms of that agreement,

without anything more being required, caused the dispatch of GFD

to Ms. Myers’ emergency. It would be strange indeed if, as

Myers concedes, the decision to enter into the AAA were

protected by statutory immunity, yet the decision to dispatch

GFD to the emergency, which follows automatically from the terms

of the AAA, nonetheless deprived Tempe of immunity.

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¶13 Because no city made an “implementing decision,” this

case is not like those involving an allegedly flawed

implementation of a fundamental governmental policy. In

Fidelity, plaintiffs alleged that they were harmed by a decision

that implemented an insurance department policy. 191 Ariz. at

224 ¶ 2, 954 P.2d at 582. Likewise, in Doe, we held that “the

State’s decision to require that teachers be certificated, as

well as decisions related to such matters as establishing

certification requirements . . . receive absolute immunity,” but

if “the State erred in its processing of a particular teaching

application,” only qualified immunity would apply. 200 Ariz. at

177 ¶¶ 9, 10, 24 P.3d at 1272 (2001). Both opinions, which held

that implementing decisions are not entitled to absolute

immunity, involved allegedly erroneous decisions that were made

to implement fundamental policy decisions. This case involves

no such process. Myers does not and could not claim that the

dispatcher erred in sending the GFD. The AAA unambiguously

dictated that “decision.”

¶14 The facts of the instant case are more comparable to

those of Evenstad v. State, 178 Ariz. 578, 875 P.2d 811 (App.

1993), than to the facts in Fidelity or Doe. In Evenstad, the

plaintiffs attempted to hold the State liable for issuing a

driver’s license to “a habitual drunkard or a person whose

operation of a vehicle would be inimical to public safety.” Id.

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at 580, 875 P.2d at 813. Their claim did not assert that a

Motor Vehicle Department (the MVD) employee had issued the

license negligently, but rather that the MVD had failed to

implement procedures, as required by statute, to identify

persons whose operation of a vehicle was harmful to public

safety and to deny them a license. Id. The MVD, however, had

instituted policies in response to the legislature’s directive,

and the decision to adopt those policies was “shielded by A.R.S.

section 12-820.01 [because it] constitute[d] the exercise of an

administrative function involving the determination of

fundamental governmental policy.” Id. at 583, 875 P.2d at 816.

The court refused to consider whether the department should have

adopted different policies, noting that “neither litigants nor

the courts may second-guess discretionary fundamental

governmental policy decisions made by State departments at the

administrative level.” Id. at 585, 875 P.2d at 818. Like the

MVD employee in Evenstad, the dispatcher in this case did

nothing more than follow the policy Tempe adopted in the AAA.

The dispatch mandated by the AAA, like the entry into the AAA,

cannot be subjected to judicial review.

B.

¶15 The third decision for which Myers asserts Tempe may

be liable involves choices related to the specific care GFD

provided Ms. Myers and Tempe’s potential vicarious liability.

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We agree with Myers that A.R.S. § 11-952.C prevents

intergovernmental agreements from eliminating a municipality’s

liability.1 Tempe’s entry into the AAA, however, does not

prevent the city from disputing the scope and nature of its

duty. See Sanchez v. City of Tucson, 191 Ariz. 128, 130 ¶ 6,

953 P.2d 168, 170 (1998) (allowing the city to dispute the scope

of its duty even though an intergovernmental agreement was the

source of the duty). Although the AAA cannot immunize Tempe

from liability where it otherwise exists, the agreement also

does not itself impose liability upon Tempe for the actions of

GFD’s emergency responders. Such liability must come from some

independent source. We conclude that neither of the two

potential sources of Tempe’s liability, the respondeat superior

doctrine nor the non-delegable duties doctrine, applies to the

instant case.

¶16 An employer may be liable for the negligence of its

employee when, “with respect to the physical conduct of the

employee and the performance of his service, he is subject to

the employer’s control or right of control.” Throop v. F.E.

Young & Co., 94 Ariz. 146, 150, 382 P.2d 560, 563 (1963).

Members of GFD, however, are not Tempe employees, even when they

operate within Tempe under a mutual aid agreement. See Garcia

1
A.R.S. § 11-952.C states that “[n]o agreement made pursuant
to this article shall relieve any public agency of any

10
v. City of S. Tucson, 131 Ariz. 315, 317–18, 640 P.2d 1117,

1119–20 (App. 1981) (finding that a Tucson police officer

responding to an emergency in South Tucson under an

“Intergovernmental Agreement for Mutual Aid in Law Enforcement”

was not an employee of South Tucson because “[South Tucson] had

no control over the method used by the City of Tucson police to

accomplish the desired result”). Indeed, Myers does not contend

that Tempe employed the emergency responders. Thus, Tempe is

not liable under the respondeat superior doctrine.

¶17 A city may delegate most of its duties, but remains

liable for certain duties even when they are carried out by

independent contractors. In Wiggs v. City of Phoenix, we noted

that if an employer has a special, or non-delegable, duty, the

general rule that “an employer is not liable for the negligence

of an independent contractor” does not apply. 198 Ariz. 367,

369 ¶ 7, 10 P.3d 625, 627 (2000). In his complaint, Myers

claims that Tempe “had a non-delegable duty to persons within

its borders, including Jo Ann Myers.” We assume without

deciding that GFD may be treated as an independent contractor of

the City of Tempe. Therefore, if Tempe had a non-delegable duty

to provide emergency services, the city may be held vicariously

liable for GFD’s actions.

¶18 The duty to provide emergency services, however, may

__________________
obligation or responsibility imposed upon it by law.”

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be delegated. Section 424 of the Restatement (Second) of Torts

(1965) notes that an entity is liable for the actions of an

independent contractor if a “statute or . . . administrative

regulation” imposes the duty. We used similar language in Ft.

Lowell v. Kelly, describing non-delegable duties as those

“imposed by statute, by contract, by franchise or charter, or by

the common law.” 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990)

(holding a landowner liable for actions of an independent

contractor). Here, however, neither the common law nor any

statute, regulation, contract, franchise, or charter imposes any

duty upon Tempe to provide emergency services. It is not,

therefore, one of the few non-delegable duties.2

¶19 Myers argues that our opinion in Veach v. City of

Phoenix, 102 Ariz. 195, 427 P.2d 335 (1967), establishes Tempe’s

duty to provide emergency services. Myers reads that opinion

too broadly. Veach held that once a municipality “assumes the

responsibility of furnishing fire protection, then it has the

duty of giving each person or property owner such reasonable

protection as others within a similar area within the

municipality are accorded under like circumstances,” but it did

2
Other sections of the Restatement (Second) of Torts
establish specific non-delegable duties. For example, in Wiggs,
we relied on section 418, which recognizes that a municipality
has a non-delegable duty to maintain its roadways. 198 Ariz. at
370 ¶ 8, 10 P.3d at 628.

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not impose upon municipalities the duty of providing emergency

services. Id. at 197, 427 P.2d at 337. Thus, the duty of

providing emergency services may be delegated because neither

the common law, nor any other source recognized in Ft. Lowell or

Section 424 of the Restatement, imposed the duty on Tempe; Tempe

assumed that duty. Because Tempe could delegate its duty to

provide emergency services, we cannot hold Tempe vicariously

liable for GFD’s actions.3

III.

¶20 For the foregoing reasons, we vacate the decision of

the court of appeals and affirm the judgment of the superior

court.

__________________________________
Ruth V. McGregor
Chief Justice
CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice
3
We also do not address whether entering the AAA satisfied
Tempe’s duty to provide equivalent service, as required in
Veach, because Tempe’s absolute immunity under A.R.S. § 12-
820.01.A.2 prohibits judicial review of such decisions.

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