Kohl v. City of Phoenix

SUPREME COURT OF ARIZONA
En Banc

KLAY KOHL, SR. and GEORGIA KOHL, ) Arizona Supreme Court
parents of KLAY CRIS KOHL, JR., ) No. CV-06-0358-PR
deceased, )
) Court of Appeals
Plaintiffs/Appellants, ) Division One
) No. 1 CA-CV 05-0087
v. )
) Maricopa County
CITY OF PHOENIX, a political ) Superior Court
subdivision of the State of ) No. CV 1997-022205
Arizona, )
)
Defendant/Appellee. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Thomas Dunevant, Judge

AFFIRMED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division One
Filed Oct. 3, 2006

VACATED
________________________________________________________________

T.J. MCGILLICUDDY, P.C. Phoenix
By Terrence J. McGillicuddy

And

HERZOG AND O’CONNOR, P.C. Scottsdale
By Mark O’Connor
Attorneys for Klay Kohl, Sr. and Georgia Kohl

JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By Eileen Dennis GilBride
Kathleen L. Wieneke
John M. DiCaro
Attorneys for City of Phoenix
HARALSON, MILLER, PITT, FELDMAN, & MCANALLY, P.L.C. Phoenix
By Kathleen Hale

And

LAW OFFICE OF JOJENE MILLS Tucson
By JoJene E. Mills

And

ADELMAN GERMAN, P.L.C. Scottsdale
By Daniel J. Adelman
Attorneys for Amicus Curiae
Arizona Trial Lawyers Association
________________________________________________________________

H U R W I T Z, Justice

¶1 The issue in this case is whether the City of Phoenix

is immune under Arizona Revised Statutes (“A.R.S.”) § 12-820.01

(1992) from liability for its decision not to install a traffic

signal at an intersection where the petitioners’ son was killed

by an automobile.

I.

¶2 On December 20, 1996, thirteen-year-old Klay Kohl was

struck and killed by a car while crossing the intersection at

19th Avenue and Wood Drive in Phoenix (“the Intersection”) on

his bicycle. Kohl’s parents sued the City of Phoenix, claiming

that the absence of a traffic light at the Intersection caused

Klay’s death.

¶3 In response, the City argued that under A.R.S. § 12-

820.01 it could not be held liable for its decision not to place

2
a signal at the Intersection. Section 12-820.01 provides, in

relevant part:

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

. . .

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

B. The determination of a fundamental governmental
policy involves the exercise of discretion and shall
include, but is not limited to:

1. A determination of whether to seek or whether to
provide the resources necessary for any of the
following:

(a) The purchase of equipment,

(b) The construction or maintenance of facilities[.]

. . .

2. A determination of whether and how to spend
existing resources, including those allocated for
equipment, facilities and personnel.

A.

¶4 The central issue in this case is whether the City

engaged in “[t]he exercise of an administrative function

involving the determination of fundamental governmental policy”

under § 12-820.01(A)(2) when it decided not to place a signal at

the Intersection. The starting point in our analysis is a

review of the process used by the City to make that decision.

The basic facts relating to that process are not disputed.

3
¶5 The City’s engineering staff annually identifies 150

to 200 intersections that are potential candidates for traffic

signals. The staff then collects information to determine if

six “warrants” — threshold criteria for signalization — are

satisfied for each of those intersections.1 The warrants involve

objective data such as traffic volumes, the proximity of school

crossings, and collision history. The collected information is

evaluated through a computer program called SIGWAR, which

produces a ranked list of those intersections based on the

extent to which the warrants have been satisfied.

¶6 City traffic engineers then take roughly the top

twenty intersections from the SIGWAR ranking and further

evaluate them using additional factors, including safety,

efficiency, school issues, right of way, roadside interference,

utilities and obstructions, vehicle mix, drainage,

alignment/profile, lighting, speed differentials, developmental

growth, circulation, sight distance, adjacent development, road

1
Relying on a definition adopted by the Federal Highway
Administration, the City defines a “warrant” as “[a] threshold
condition that, if found to be met as part of an engineering
study, shall result in analysis of other traffic conditions or
factors to determine whether a traffic control signal . . . is
justified.” The six warrants chosen by the City were minimum
vehicular volume, interruption of continuous traffic, minimum
pedestrian volume, progressive movement, accident experience,
and combination of warrants. See Fed. Highway Admin., U.S.
Dep’t of Transp., Manual on Uniform Traffic Control Devices 4C-4
to -7 (1988).

4
improvements, and jurisdictional boundaries. City staff then

recommends eight to ten intersections from this group to the

City Council for funding.2

¶7 The City repeatedly analyzed the Intersection using

SIGWAR in the years before the accident that claimed Klay Kohl’s

life.3 The Intersection was never ranked by SIGWAR higher than

seventy-first among the locations surveyed and was usually

ranked in the mid-100s. Because of this ranking, the

Intersection never received the more detailed evaluation

annually given to the top twenty intersections ranked through

the SIGWAR process and was never recommended to the City Council

for signalization.

B.

¶8 The superior court initially granted summary judgment

to the City, holding that the City’s decision to use the SIGWAR

system to make an initial determination as to which

intersections should receive traffic lights was immune from suit

2
This suit involves only the City’s administrative decisions
about which intersection should be signalized, and not the
eventual decision of the City Council. This case thus does not
require us to determine the applicability of A.R.S. § 12-
820.01(A)(1), which provides immunity against suits attacking
“[t]he exercise of a . . . legislative function.”
3
This case therefore does not involve a “decision by
default” unprotected by § 12-820.01. See Galati v. Lake Havasu
City, 186 Ariz. 131, 136, 920 P.2d 11, 16 (App. 1996) (“Where no
actual decision is made, there is no governmental function or
statement of public policy at issue.”).

5
under § 12-820.01(A)(2). The Kohls appealed, and the court of

appeals reversed and remanded. Kohl v. City of Phoenix (Kohl

I), 1-CA-CV 00-0105, ¶ 26 (Ariz. App. Apr. 25, 2002) (mem.

decision).

¶9 Kohl I distinguished claims that the City had been

negligent in adopting the SIGWAR program from claims that the

City had been negligent in implementing that program:

When a municipality adopts a traffic planning program
that includes criteria to establish priorities for the
allocation of funds among competing projects, the
adoption of that program, in our judgment, does amount
to fundamental policymaking. Thus, a litigant who
attempts to trace a traffic injury to a misjudgment in
the adoption or design of such a program will
encounter the bar of absolute immunity pursuant to
A.R.S. § 12-820.01.

If, on the other hand, a litigant attempts to trace a
traffic accident not to the adoption of the program,
but to the fault of municipal employees in the
execution or implementation of the program, such
conduct would not be entitled to absolute immunity
pursuant to that statute . . . .

Id. ¶¶ 22-23.

¶10 The court of appeals therefore viewed the dispositive

issue to be whether the City’s failure to place a traffic signal

at the Intersection was “merely the automatic product of the

City’s program for allocating priorities among intersections,”

or whether the failure resulted “from the faulty input or

collection of data regarding the intersection.” Id. ¶ 24. In

the former case, the decision would be entitled to absolute

6
immunity under § 12-820.01. Id. In the latter, the failure to

place a signal would be an “operational failure, not a

policymaking failure,” and not entitled to absolute immunity.

Id.

¶11 On remand, the City again moved for summary judgment,

arguing that the decision not to place a traffic signal at the

Intersection flowed automatically from the immune decision to

adopt the SIGWAR screening program. Although the Kohls claimed

that some data concerning the Intersection that had been input

into SIGWAR was inaccurate, they did not claim that more

accurate data would have caused the Intersection to be ranked

highly enough to move into the City’s second stage of

consideration. The superior court therefore found that any

failure to signalize the Intersection resulted from the adoption

of the SIGWAR program, not from any “operational failure,” and

again granted summary judgment to the City.

¶12 The Kohls appealed and the court of appeals again

reversed and remanded. Kohl v. City of Phoenix (Kohl II), 1-CA-

CV 05-0087, ¶ 36 (Ariz. App. Oct. 3, 2006) (mem. decision).

Kohl II held that because the City’s program involved not only

an initial prioritization by SIGWAR, but also subsequent

evaluation of various intersections by City staff, any decision

not to signalize the Intersection could not be viewed simply as

an automatic result of the policy decision to use the computer

7
program and thus was not immune under § 12-820.01. Id. ¶¶ 25-

26. In the absence of absolute immunity, the court of appeals

found that summary judgment was precluded because of fact issues

as to whether the City had acted unreasonably in failing to

install a signal at the Intersection. Id. ¶¶ 34-35.

¶13 We granted the City’s petition for review because the

application of § 12-820.01 to traffic signalization decisions is

a recurring issue of statewide importance. See ARCAP 23(c)(3).

We have jurisdiction pursuant to Article 6, Section 5(3) of the

Arizona Constitution, A.R.S. § 12-120.24 (2003), and ARCAP

23(a).

II.

A.

¶14 Kohl I correctly held that the City’s decision to use

SIGWAR to prioritize intersections for signalization was

“fundamental policymaking” and therefore absolutely immune under

§ 12-820.01.

¶15 As the court of appeals recognized, the City’s

decision to use a computer program in selecting intersections

for prioritization — rather than placing signals at every

ostensibly dangerous corner regardless of cost or using some

other method of analysis to determine which corners among many

worthy candidates received traffic signals — is precisely the

sort of policymaking decision protected by § 12-820.01. Under §

8
12-820.01(B), the decision was a determination of “fundamental

governmental policy” because it involved the “exercise of

discretion” and the “determination of whether to seek or whether

to provide the resources necessary for . . . [t]he construction

or maintenance of facilities.” See Myers v. City of Tempe, 212

Ariz. 128, 130 ¶ 10, 128 P.3d 751, 753 (2006) (holding immune

under § 12-820.01 an administrative decision that “involved

weighing risks and gains, concerned the distribution of assets,

and required consulting the city’s subject matter experts”).

¶16 The statutory immunity is not abrogated because

traffic experts can reasonably opine that the City was negligent

in relying upon the SIGWAR program in making the first cut of

intersections to be considered for signalization. Section 12-

820.01(A)(2) immunizes all determinations of fundamental

governmental policy, even those that can be shown to fall below

a standard of reasonable care.

¶17 The selection of the six warrants as criteria for

SIGWAR evaluation is also immune. In Doe ex rel. Doe v. State,

we held that the Arizona Department of Education’s discretionary

selection of which criteria to use in the licensing of teachers

was entitled to absolute immunity under § 12-820.01. 200 Ariz.

174, 177 ¶ 9, 24 P.3d 1269, 1272 (2001). The City’s

discretionary selection of the specific criteria to be used in

the SIGWAR program involves a similar policy determination. The

9
court of appeals thus quite correctly held that claims that the

SIGWAR program was negligently adopted or designed were barred

by § 12-820.01.4

B.

¶18 Kohl II did not retreat from the court’s initial

determination that the City’s use and design of the SIGWAR

program was immune from suit under § 12-820.01. Rather, the

panel focused on the question that was the subject of the remand

— whether the failure to place a signal at the Intersection was

the product of that immune decision or instead caused by an

4
The Kohls argue that A.R.S. § 28-641 (1998) and Phoenix
City Code 36-11 (2007) require use in SIGWAR of eleven warrants
identified by the Manual on Uniform Traffic Control Devices
(“MUTCD”), not just the six selected by the City. The City
considers the remaining five MUTCD factors only in the second
stage of its analysis, when reviewing intersections at the top
of the SIGWAR priority list.

Section 28-641, however, simply instructs the Department of
Transportation “to adopt a manual and specifications for a
uniform system of traffic control devices for use on highways in
this state”; the system must “correlate with and as far as
possible conform to [MUTCD].” The statute does not preclude
municipalities from giving particular weight to selected
warrants in signalization decisions. Indeed, A.R.S. § 28-643
(1998) expressly grants local authorities discretion to “place
and maintain the traffic control devices on highways under their
jurisdiction as they deem necessary.”

Phoenix City Code § 36-11 merely directs that “traffic
control devices shall conform to the Manual on Uniform Traffic
Control Devices.” The ordinance expressly empowers the Traffic
Engineer to place traffic control devices “as he may deem
necessary under the traffic ordinances of this City, or under
State law.” Id.

10
operational failure in execution or implementation of the

program by City staff.

¶19 Our cases have repeatedly distinguished between

policymaking, which is immune under § 12-820.01, and the

implementation of policy — so-called “operational” decisions —

which are not entitled to such absolute immunity. In Fidelity

Security Life Insurance Co. v. Department of Insurance, we held

that § 12-820.01 did not grant absolute immunity to the

Department with respect to a claim that it had negligently

certified an insurance company. 191 Ariz. 222, 225-26 ¶¶ 11-12,

954 P.2d 580, 583-84 (1998). The suit did not attack the

regulations under which the insurance company was certified,

which we noted were “largely controlled by statute.” Id. at 226

¶ 12, 954 P.2d at 584. Rather, the claim was that the

Department had been negligent in implementing the regulatory

scheme by certifying the company at issue. Id. We held that

the challenged action therefore involved “operational

decisions,” rather than fundamental policymaking, and did not

fall within the ambit of the absolute immunity provided by § 12-

820.01. Id.

¶20 We employed a similar analysis in Doe, which involved

a claim that the Department of Education had negligently

certified a teacher who later molested a student. 200 Ariz. at

175 ¶ 1, 24 P.3d at 1270. Doe recognized that the State’s

11
decision to require certification, “as well as decisions related

to such matters as establishing certification procedures,”

involved a determination of fundamental governmental policy and

was therefore immune under § 12-820.01. Id. at 177 ¶ 9, 24 P.3d

at 1272. But we distinguished such decisions from the issue of

whether the State, applying the criteria it had previously

selected, erred in issuing a certificate to a particular

teacher. Id. ¶¶ 9-10. Such “operational actions and decisions

within [the] regulatory scheme” were not entitled to immunity

under § 12-820.01. Id. at 176 ¶ 6, 24 P.3d at 1271.

¶21 We employed similar reasoning in Myers, a suit which

involved neither certification decisions nor a regulatory

scheme. The plaintiff claimed in Myers that the City of Tempe

negligently dispatched a particular response unit to an

emergency. 212 Ariz. at 129 ¶ 4, 128 P.3d at 752. We first

held that the City’s decision to enter into an intergovernmental

agreement with surrounding municipalities regarding emergency

responses was a policymaking decision protected under § 12-

820.01. Id. at 130 ¶ 10, 128 P.3d at 753. Because the

agreement mandated dispatch of the closest response unit to the

emergency, we then held that the City’s “decision” to dispatch

the unit at issue was also subject to absolute immunity, as it

flowed inexorably from the decision to enter into the compact.

Id. at 131 ¶ 12, 128 P.3d at 754. In so holding, we

12
distinguished Fidelity and Doe, noting that Myers did not

involve a claim that a municipality had erred in making an

“implementing decision.” Id.

¶22 In distinguishing Myers, Kohl II relied heavily on the

fact that the City staff’s recommendations as to which corners

to signalize relied not only on SIGWAR, but also on “engineering

judgment” and “city-wide traffic operational concerns.” Kohl

II, 1-CA-CV 05-0087, slip op. at ¶ 25. The court of appeals

therefore viewed the decision not to place a signal at the

Intersection as an operational or implementing decision, rather

than a determination of fundamental governmental policy. Id.

¶23 That analysis, however, ignores SIGWAR’s role in the

City’s decision-making process. Only the top twenty or so

intersections in the SIGWAR ranking receive the more detailed

evaluation described by the court of appeals; no further

analysis is done on the remaining intersections. As we have

noted above, Kohl I correctly held that the City’s decision to

use SIGWAR to choose the top twenty candidates for signalization

was immune from suit under § 12-820.01. The City’s decision not

to place a signal at the Intersection flowed directly from that

immune decision, just as the City of Tempe’s decision in Myers

to dispatch a particular unit flowed directly from its immune

decision to enter into the intergovernmental agreement.

13
¶24 Thus, even assuming arguendo that the court of appeals

correctly characterized the City’s choice of intersections to

receive signals from among the top twenty identified by SIGWAR

as an operational decision, the Kohls’ claim still fails. The

Kohls did not claim that any operational decision by the City

resulted in the Intersection being omitted from the semi-

finalist list of the top twenty SIGWAR locations. The omission

of the Intersection from the final list of recommended

signalization locations was an automatic product of the City’s

immune decision to use SIGWAR as an initial screening tool and

was thus itself immune under § 12-820.01. See Myers, 212 Ariz.

at 131 ¶ 12, 128 P.3d at 754 (holding that decision “follow[ing]

automatically” from immune policy decision was also immune).

C.

¶25 In finding the decision not to signalize the

Intersection to be operational, the court of appeals also relied

upon evidence that, on some occasions, the City has placed

signals at intersections not subjected to SIGWAR analysis. That

evidence, however, does not affect the City’s immunity from suit

in this case.

¶26 The Kohls identified three intersections where the

City approved signals even though the SIGWAR warrants were not

yet satisfied. Each was in an area of new commercial

development — the Mayo Hospital, the Desert Ridge shopping

14
center, and the downtown Arizona Center.5 The City’s decision to

signalize these corners before the SIGWAR warrants were

satisfied was a permissible anticipatory approach to future

traffic issues. These isolated instances are not evidence that

decisions arising out of use of the SIGWAR program were

operational in nature. The record makes plain that for the

Intersection — for which meaningful SIGWAR data was already

available and where no large-scale commercial development was

imminent — an essential prerequisite for obtaining a signal was

a sufficiently high SIGWAR initial priority ranking. The

Intersection’s failure to obtain such a ranking — a result that

flowed directly from the City’s policymaking decision about

which criteria to include in SIGWAR — was thus an automatic

result of a decision immunized from suit under § 12-820.01.6

III.

¶27 The superior court correctly granted summary judgment

to the City under A.R.S. § 12-820.01. We therefore vacate the

5
The Mayo Hospital and Desert Ridge traffic signals were
funded by the projects’ developers and therefore did not involve
decisions by the City about allocating funding.
6
The City did signalize the Intersection after Klay Kohl’s
death. But this subsequent remedial measure cannot be used to
prove the City’s negligence in connection with the accident.
Ariz. R. Evid. 407. Moreover, even if the eventual
signalization of the Intersection is evidence that the City no
longer strictly followed the SIGWAR program after the accident,
it does not demonstrate that the program was not followed before
Klay Kohl’s death.

15
memorandum decision of the court of appeals and affirm the

judgment of the superior court.7

_______________________________________
Andrew D. Hurwitz, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
W. Scott Bales, Justice

M c G R E G O R, Chief Justice, concurring.

¶28 I concur in the outcome reached by the Court today,

but write separately because I think the Court has applied an

unnecessarily complex analysis to resolve this case.

¶29 The legislature is constitutionally empowered to

“direct by law the manner in which suits may be brought against

the state.” Clouse ex rel. Clouse v. State, 199 Ariz. 196, 203

7
Because the City’s decision not to signalize the
Intersection resulted automatically from use of the SIGWAR
program, we do not find it necessary today to address the City’s
broader argument that every decision not to signalize an
intersection constitutes fundamental policymaking under § 12-
820.01, and is therefore immune even if based on negligent
operational decisions or faulty data. See infra at ¶¶ 28-33
(concurring opinion).

16
¶ 24, 16 P.3d 757, 764 (2001); see also Ariz. Const. art. 4, pt.

2, § 18 (“The Legislature shall direct by law in what manner and

in what courts suits may be brought against the State.”). In

promulgating A.R.S. § 12-820.01, the legislature exercised its

authority and specifically declared that certain spheres of

governmental conduct shall be absolutely immune from liability.

The legislature declared that “[a] public entity shall not be

liable for acts and omissions of its employees constituting . .

. [t]he exercise of an administrative function involving the

determination of fundamental governmental policy.” A.R.S. § 12-

820.01.A (emphasis added). The legislature then identified

certain determinations that, as a matter of law, constitute

“fundamental governmental policy.” Section 12-820.01.B

provides, in part:

The determination of a fundamental governmental policy
involves the exercise of discretion and shall include,
but is not limited to:

1. A determination of whether to seek or whether to
provide the resources necessary for any of the
following:
(a) The purchase of equipment.
(b) The construction or maintenance of
facilities.

. . . .

2. A determination of whether and how to spend existing
resources, including those allocated for equipment,
facilities and personnel.

(Emphasis added.)

17
¶30 The majority seems to agree that the City’s

signalization decision falls within the statutory language

quoted above. See Op. ¶¶ 5-6, 15 (noting that the decision

involves the exercise of discretion and whether to seek or

provide resources for traffic signals). Applying the plain

language of A.R.S. § 12-820.01, then, the City engaged in a

determination of “fundamental governmental policy” when it

decided where to install traffic signals and concluded that it

would not spend its resources to place a signal at the

Intersection.

¶31 That conclusion should end our analysis. The City’s

signalization decision falls within an enumerated example of

fundamental governmental policy as defined by statute, and the

City therefore benefits from the absolute immunity granted by

the legislature.

¶32 The situation here differs from those in cases that

required additional analysis by the courts. In Doe ex rel. Doe

v. State, 200 Ariz. 174, 24 P.3d 1269 (2001), for instance, two

separate sections of the immunity statute addressed licensing

decisions involving teachers. We concluded, after examining the

statutory language and legislative history, that the legislature

intended to grant absolute immunity for licensing decisions that

fell within A.R.S. § 12-820.01, but only qualified immunity to

those implementing decisions that fell within section 12-820.02.

18
Id. at 176-78 ¶¶ 7-11, 24 P.3d at 1271-73. In decisions such as

Fidelity Security Life Insurance Co. v. Department of Insurance,

191 Ariz. 222, 954 P.2d 580 (1998), and Myers v. City of Tempe,

212 Ariz. 128, 128 P.3d 751 (2006), we considered the effect of

allegations that government employees had failed to apply

policies adopted under the grant of immunity of section 12-

820.01. See, e.g., Myers, 212 Ariz. at 130-31 ¶¶ 10, 14, 128

P.3d at 753-54 (noting that the dispatcher followed a policy the

city adopted in an intergovernmental agreement, the latter being

a decision that both parties conceded was absolutely immune);

Fidelity, 191 Ariz. at 224 ¶ 5, 226 ¶ 12, 954 P.2d at 582, 584

(explaining that the decision at issue “did not involve the use

or exercise of discretion” and merely implemented “an

established regulatory scheme largely controlled by statute”).

This case presents no comparable allegation.

¶33 I would conclude, as I think the majority does, that

this case involves a discretionary governmental decision and

falls within a statutorily enumerated category constituting the

determination of fundamental governmental policy. That

conclusion, in my view, is determinative of the City’s right to

immunity.

_______________________________________
Ruth V. McGregor, Chief Justice

19
CONCURRING:

_______________________________________
Michael D. Ryan, Justice

20