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,
2
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
3
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
4
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
5
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.
6
¶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.
7
¶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.
9
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.”
11
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.
12
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.
13