dissenting.
¶ 30 Until today, absent an intergovernmental agreement to the contrary, Arizona law imposed exclusive liability on the state for state highways. I would not change existing law to impose liability on the city for a road that is not its own. The existence of a legal duty is dictated by the legal right to control rather than the exercise of control. In this case, only the state had the legal right to control. The state thus has the legal duty. While the state and the city could have entered into an agreement to give the city the legal right to control, no such agreement was ever made. By allowing the existence of a legal duty to be driven by a fact specific inquiry into the exercise of control, we lose predictability and certainty in the law without any countervailing benefit to an injured party.
¶ 31 The injured party already has a cause of action against the state for conditions on a state road. Under the majority approach, which looks to the issue of control or amount of control, rather than the legal right to control, the answer to the question of whether one entity has any liability for circumstances on another entity’s road will be “it depends upon the facts.” But existing law ties the existence of a legal duty to the legal right to control, so that the answer to the question is predictable and certain — the state is responsible for state roads unless otherwise prescribed by an express intergovernmental agreement which did not exist here.
¶ 32 Under existing statutes and cases, both the trial court and the court of appeals correctly applied our law in granting and affirming summary judgment in favor of the city. Absent an intergovernmental agreement that provides otherwise, state highways are the exclusive responsibility of the state. A.R.S. §§ 28-104(A), 28-108(A)(18), and 28-108(A)(19). In Harlan v. City of Tucson, 82 Ariz. 111, 309 P.2d 244 (1957), we held that a city does not have a duty in tort when it does not have • jurisdiction or the legal right to control a dangerous condition on a roadway. Harlan cannot be distinguished from this case and, while the majority discusses it, it just rejects it without offering sufficient reasons to do so. Ante, at ¶ 20.
¶ 33 Under the intergovernmental agreement that did exist between the city and the state, the state is responsible for the construction of betterments. Traffic signals were specifically addressed — they would “be covered by separate agreement.” But the city and the state never entered into any such agreement.
¶ 34 How then does the majority reach the conclusion that summary judgment was inappropriate? It first states that a municipality owes a duty to the public to keep its *135streets safe. Ante, at ¶ 10. But this is not in dispute. This was not a city street. It then says that if a city exercises control over a roadway it owes a duty. Id. But the case the majority (compare ante, at ¶ 10 with ante, at ¶ 27) cites in support of this proposition, Martinez v. State, 177 Ariz. 270, 866 P.2d 1356 (App.1993), had nothing to do with conditions on a road owned by the state. In Martinez, the county was held liable for conditions on a private citizen’s land where the county used that land for a county road. Obviously the county should be liable for a county road that it places over private property. But here, the city did not place its road over state property. This is a state road and under our statutes, the state has exclusive legal responsibility for it. Finally, the majority says that the issue of control is a question of fact for the jury. Ante, at ¶ 10. But the issue is the legal right to control, not the exercise of control. The majority thus reaches its conclusion by assuming its validity.
¶ 35 That portion of the intergovernmental agreement cited by the majority, and characterized by Sanchez as a “joint improvement” agreement, ante, at ¶ 16, does not impose a legal obligation on the city to install a traffic light. It just candidly acknowledges that the city and the state did not address the issue and it would be the subject of future negotiation which never occurred. The fact that the state was willing to grant consent to the city to install a light when a developer would pay for it does not alter the fact that the state was ultimately responsible. The city had no duty to put the light up once the developer’s funds disappeared. That duty, and the financial obligation that flowed from it, was always the state’s.
¶ 36 The majority’s reference to UCATA begs the question. UCATA only applies when a party is at fault. The City of Tucson cannot be a nonparty at fault under UCATA because under that act “‘fault’ means an actual breach of a legal duty,” A.R.S. § 12-2506(F)(2). Under Harlan, the city is not a tortfeasor because it owes no legal duty to the plaintiff to erect a traffic signal. Therefore, the state could not name the city as a nonparty at fault because the state would be 100% hable for the injury caused by its conduct. Thus the majority’s hypothetical that the state could name the city as a nonparty at fault and reduce its liability to nothing, ante, at ¶ 26, evaporates.
¶ 37 Until now, our law in this area was clear. Absent express agreements to the contrary, the state was responsible for state highways, the county was responsible for county highways, and the city was responsible for city roads. But today, an entity might become hable for some other entity’s highway even when it is the financial obligation of the other entity to improve the road. In Harlan, we understood this to be bad pubhc policy. We said:
[I]n weighing the various pohcies involved in the construction of state highways, our legislature ... felt that the duty to the traveling pubhc could best be served ... by placing exclusive control in one agency, the state highway department, rather than having a dual control within city hmits where conflicting pohcies and divided responsibility could possibly retard their optimum development.
Harlan, 82 Ariz. at 119, 309 P.2d at 250.
¶ 38 Because I beheve that Harlan continues to express a proper understanding of a legislative allocation of legal responsibility, I respectfully dissent.