dissenting.
I dissent. In my opinion the trial court should have directed a verdict in appellant’s favor because the evidence shows that both the drivers were careless in their driving and inattentive to road conditions when the accident occurred. Consequently, the appellant was under no duty to protect appellee from the injury he suffered.
Expanding the facts will demonstrate the basis for my conclusion. Billy Stapp testified that he had driven on Saratoga three times before the accident, that he did not know of the Blue Grass intersection, that he did not see it, and that he did not see the Enhelder vehicle until the accident occurred. He further testified that he looked neither to his right nor left upon reaching the intersection, and that he took no evasive action to avoid the collision.
Ms. Enhelder testified that she knew the intersection was there and looked both *515ways, but did not see the Stapp vehicle until the instant before impact. Deputy Sheriff Douglas Steele, the investigating officer who wrote the accident report, testified that the intersection was visible from any direction for at least 100 feet. Deputy Sheriff Robert Rathbone, another investigating officer, testified that the intersection was visible for at least 200 feet, and that when a vehicle is in the arroyo on Saratoga its driver would not totally lose sight of a vehicle traveling on Blue Grass.
Marshall Day, plaintiff’s specialist on accident reconstruction, testified that the arroyo on Saratoga was approximately 225 feet from the intersection and that the driver of a vehicle in the arroyo would be unable to see an approaching vehicle on Blue Grass. He also testified that in his opinion the intersection was dangerous because it was unmarked and not readily apparent to the driver of a vehicle on Saratoga. He also stated, however, that the vehicles would not be totally obscured from each other the last 200 feet before the intersection, and that when the drivers on each street were within 100 feet of the intersection both would have a “clear view” of the other’s vehicle. He went on to state that the drivers in the present case could have stopped within the last 100 feet had they been attentive.
The appellant’s expert witness Derwyn Severy testified that the intersection was not dangerous. The curbs had been installed and they provided “contrast and structural delineation of the presence of an intersection for an approaching motorist.” This is borne out by his photographs introduced into evidence. He admitted on cross-examination, however, that the center striping through an uncontrolled intersection constituted bad engineering practice.
All witnesses agreed that at 100 feet from the intersection each driver could clearly see the other. Neither party testified that they relied on the stop sign at the north side of Blue Grass to control traffic.
At the close of appellee’s evidence on liability the appellant moved for a directed verdict, arguing that appellee had failed to prove actionable negligence. The court denied the motion for two reasons: (1) appellee’s expert testified that the intersection was dangerous, and (2) appellant had assumed a duty to control traffic by erecting a stop sign for southbound traffic on Blue Grass.
Negligence is based upon the concept of fault. Tucson Rapid Transit Co. v. Tocci, 3 Ariz.App. 330, 414 P.2d 179 (1966). For actionable negligence to exist, three elements must be established: (1) Defendant must have had a duty to protect the plaintiff from the injury of which he complains; (2) The defendant must have failed to perform that duty; and (3) The harm to plaintiff must have proximately resulted from the failure. See Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977); City of Scottsdale v. Kokaska, 17 Ariz.App. 120, 124, 495 P.2d 1327, 1331 (1972).
A municipality has no obligation to maintain unobstructed-view intersections. Boyle v. City of Phoenix, supra; Slavin v. City of Tucson, 17 Ariz.App. 16, 495 P.2d 141 (1972). Nor does it have a duty to regulate traffic at intersections by posting signs or traffic signals. Rodgers v. Ray, 10 Ariz.App. 119, 457 P.2d 281 (1969). It does have a duty, however, to warn of dangerous conditions on public roads. Rodgers v. Ray, supra; State v. Watson, 7 Ariz.App. 81, 436 P.2d 175 (1967). Further, once a municipality undertakes to control traffic at an intersection with signs or warning devices and invites reliance thereon, then it must do so non-negligently, taking care not to create a dangerous condition, and it must properly maintain the signs or warning devices which it erects. Slavin v. City of Tucson, supra; Teall v. City of Cudahy, 60 Cal.2d 431, 34 Cal.Rptr. 869, 386 P.2d 493 (1963).
The appellee, relying on Rodgers v. Ray, supra, contends that the Blue Grass-Saratoga intersection was dangerous because it was obscured by the arroyo and because no stop or warning sign was posted for northbound traffic on Blue Grass. Appellant, on the other hand argues that Rodgers v. Ray, supra, is not controlling here because Rodgers dealt with a blind intersection, and fur*516ther argues that Slavin v. City of Tucson, supra, is applicable. I think appellant’s analysis of these cases is correct.
Rodgers v. Ray, supra, was an appeal from a summary judgment for the defendants in a negligence action arising out of a two-vehicle intersection collision. The plaintiff contended that Maricopa County breached its duty to warn of a dangerous condition on a public road by failing to warn of the existence of an intersection totally obscured by high embankments. The court, in reversing the summary judgment, agreed that a genuine issue of material fact existed precluding summary judgment, and stated that a “blind intersection” could constitute a hidden danger, which could give rise to a duty to warn of that danger, if facts of the existence of a hidden danger were established. The court’s decision was based in part on State v. Watson, supra, where a judgment against the state for failure to warn of a suddenly appearing narrow bridge was affirmed.
To be distinguished from Rodgers, and Watson, supra, is Slavin v. City of Tucson, supra, in which a directed verdict for the city was affirmed in an action to recover for personal injuries and wrongful death arising from an automobile accident at an uncontrolled intersection. Testimony there revealed visibility was obscured by a hedge parallel to the roadway and that no warning signs were posted. The plaintiff relied on Rodgers v. Ray, supra. However the Slavin court distinguished Rodgers, stating:
We held that under such circumstances the city would be liable for failing to post a sign warning of the existence of the intersection. [17 Ariz.App. at 18, 495 P.2d at 143].
The court in Slavin then stated that had either driver slowed down and looked, a clear view of the intersection would have been available. The court held therefore that the intersection did not constitute a “hidden trap” as in Rodgers v. Ray and that the directed verdict for the city had been proper.
After reviewing the facts and exhibits in the present case, I am not persuaded that the Blue Grass-Saratoga intersection constituted a “hidden trap.” To the contrary, testimony indicated the intersection was visible and unobscured to such an extent that if either driver had been alert, within 100 feet of the intersection, the accident would most probably never have happened. Therefore, I would hold as a matter of law, the condition of the intersection did not give rise to a duty on the part of appellant to post signs warning of its existence. See Slavin v. City of Tucson, supra.
Appellee also contends that once appellant undertook to control traffic at the intersection by erecting a stop sign for southbound traffic on Blue Grass, it had a duty to complete the task by erecting a sign for northbound traffic and its failure to do so was negligent. In support of this contention appellee relies primarily upon Teall v. City of Cudahy, supra, which held that once a municipality undertakes to control traffic at an intersection and invites reliance on its controls, then it may be liable for damages if it creates a dangerous condition in doing so. The Teall court was not dealing with the situation where a municipality had failed to erect traffic controls but where they had. Further, Teall is inapplicable to this case since both drivers here testified they did not rely upon the stop sign at the north side of Blue Grass as controlling the intersection. Additionally, the intersecting roads involved in the accident were not controlled and therefore this argument is really academic.
It is my opinion that no duty existed under the facts set out above.