NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

DEBORAH TOURTILLOT, et al., P laintiff s /Appellant s

/Cross

- Appellees
,

v.

YUMA COUNTY, Defendant/Appellee

/Cross

- Appellant

.
No. 1 CA

- CV 17

- 0769

Appeal from the Superior Court in Maricopa County

No. CV2015

- 091608 The Honorable David M. Talamante
, Judge

AFFIRMED IN PART; VA CATED IN PART; AND R EMANDED

COUNSEL

Karnas Law Firm, P.L.L.C
, Tucson By M. David Karnas Co

- Counsel for Plaintiff

s /Appellant s

/Cross

- Appellees Deborah Tourtillot, John Tourtillot, Alora Dugan, Angelene Cabrales, Kirby Dugan, Brandon Phillips, and Lorena Tambo FILED 1-15-20192

Davis Miles McGuire Gardner , P.L.L.C
, Tempe By Michael E. Medina Jr. Co

- Counsel for Plaintiff

s /Appellant s

/Cross

- Appellees Deborah Tourtillot, John Tourtillot, Alora Dugan, Angelene Cabrales, Kirby Dugan, Brandon Phillips, and Lorena Tambo

Law Offices of C. Candy Camarena
, Yuma By Cornelius C. Camarena Counsel for Plaintiff

s /Appellant s/Cross

-

Appellees Milson Jose, Josephine Kolb, Loki Morrow, Linus Morrow, Deena Morrow, and Hannah Morrow

Jones Skelton & Hochuli, P.L.C.
, Phoenix By Michele Molinario, Diana J. Elston, Justin M. Ackerman Counsel for Defendant/Appellee /Cross

- Appell ant

MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision o f the Court, in which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig joined.

J O N E S , Judge:

¶1 Appellants challenge the trial court’s entry of judgment in favor of Yuma County (the County ) after finding it statutorily immune pursuant to Arizona Revised Statutes ( A.R.S. ) § 12

- 820.01. 1 The County

cross

- appeals from the denial of a separate motion for summary judgment alleging it is entitled to judgment as a matter of law up on its affirmative defense under A.R.S. § 12

- 820.03. For the following reasons, we conclude the County is not statutorily immune and genuine issues of material fact exist regarding the applicability of the affirmative defense. Accordingly, we vacate the order of dismissal, affirm the denial of the alternate motion for summary judgment, and remand for further proceedings.

1 Absent material changes from the relevant date, we cite a statute’s current version.TOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

3 FACTS AND PROCEDURAL HISTORY

¶2 Appellants are the survivors of three people (the Decedents) killed in a traffic accident at the intersection of West County 9th Street and South Avenue D in Yuma (the Intersection). At the time of the accident
, the
east

- and westbound traffic on County 9th Street was controlled with

ov ersized 48

- inch stop signs , signs warning of the upcoming stop sign s , and flashing beacons with signs cautioning that “Cross Traffic Does Not Stop.” The traffic on Avenue D was not required to stop and was not warned of the Intersection. T he posted speed limit was thirty

- five miles per hour on Avenue D and westbound County 9th Street and fifty miles per hour on eastbound County 9th Street.

¶3 In April 2013, the Decedents’ vehicle approached the Intersection on County 9th Street from the w est. After stopp ing at the I ntersection and then attempt ing to cross, the vehicle was struck by a pick

up truck traveling southbound on Avenue D at nearly twenty miles per hour above the posted speed limit. Appellants filed wrongful death claims against the County alleging the C ounty’s negligent des ign, placement, maintenance , and operation of traffic

- control devices at the Intersection caused the accident and resulting fatalities

. I n their complaint, Appellants allege d both that the County should have i nstalled a multiway stop at the Intersection and that the speed on Avenue D was not properly controlled.

¶4 In January 2017, the County filed two dispositive motions. The first argued the County was absolutely immune from liability for legislative and fundam ental government policy decisions pursuant to A.R.S. § 12

- 820.01; the second argued the County was not subject to liability for injuries arising from road maintenance or improvement pursuant to A.R.S. § 12

- 820.03.

¶5 The evidence, viewed in the light most fav orable to Appellants, Compassionate Care Dispensary, Inc. v. Ariz. Dep’t of Health Servs.
, 244 Ariz. 205, 209, ¶ 3 n.2 (App. 2018) (quoting City of Tempe v. State , 237 Ariz. 360, 362, ¶ 1 n.3 (App. 2015)), 2 reflects that the County has adopted a roadway analysis process. Th rough this process, various County

2 We reject the County’s suggestion that this Court is bound to accept its version of the facts because its statement of facts was not properly opposed. The unreported federal cases upon which the County relie s are unpersuasive and represent a draconian departure f r om the traditional notions of notice and fairness that ha ve always been the standard of this Court.TOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

4 employees and committees periodically collect and compile traffic accident data , which the County then reviews before commission ing engineering studies to determine whether improvements are necessary to keep roadways within its jurisdiction safe. Thereafter, m ajor roadway improvements are subject to approval and funding by the County’s board of supervisors (the Board)

. Once implemented, the County monitors the changes to assess their impact up on traf fic accidents.

¶6 T he County first employed a traffic engineering consultant to evaluate the safety of the Intersectio n after observing an increase in accidents in 1990

. Although traffic at the Intersection was, at that time
, controlled solely by standard

- si ze d stop signs facing the east

- and westbound traffic on County 9th Street, the County determined further intervention was not warranted. After a second study (the 2000 Traffic Study)
, t he County chose , with approval and funding from the B oard, to install oversized stop signs with flashing beacons on the County 9th Street approaches. In 2008, without having commissioned another study, the County placed warning s on the existing stop signs on County 9th Street that “Cross Traffic Does Not Stop

. ”

¶7 T o support its motions for summary judgment, t he County presented expert testimony that the Intersection “was designed, constructed and maintained consistent with generally accepted engineering

a nd design standards at the time

. ” The expert opined that the De cedents’ accident was caused by human factors alone, with no contribution from roadway or vehicle factors. Appellant submitted a competing opinion that the implementation of a four

- way stop was “the only reasonable countermeasure” to address the accidents that continued to occur at the Intersection each yea r

. ¶8 After t aking the matter under advisement, the trial court granted the County’s first motion for summary judgment and denied the second. Appellants appealed the final judgment, and the County cross

appealed. We have jurisdiction pursuant t o A.R.S. § § 12

- 120.21(A)(1) and

- 2101(A)(1). See also Bothell v. Two Point Acres, Inc. , 192 Ariz. 313, 316, ¶ 7 (App. 1998) (holding that although an order denying summary judgment is generally not appealabl e, the court may review the order along with one granting summary judgment “to avoid piecemeal litigation”) (citing Mealey v. Orlich , 120 Ariz. 321, 321 (1978), and State Farm Mut. Auto. Ins. v. Peaton , 168 Ariz. 184, 194 (App. 1990))

.TOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

5 DISCUSSION

I. Motion fo r Summary Judgment No. 1: Absolute Immunity Under A.R.S. § 12

- 820.01

¶9 Appellants argue the trial court erred in finding the County absolute ly immune because the County’s decisions to approve, fund, and maintain improvements to the Intersection are not entit led to legislative or administrative function immunity. The existence and scope of governmental immunity present questions of law subject to de novo review. Tostado v. City of Lake Havasu , 220 Ariz. 195, 198, ¶ 12 (App. 2008) (citing Link v. Pima Cty. , 1 93 Ariz. 336, 341, ¶ 18 (App. 1998)).

¶10 Generally, “governmental immunity is the exception and liability is the rule.” Id. (citing Allied S ignal, Inc. v. City of Phoenix , 182 F.3d 692, 694 (9th Cir. 1999)). Nonetheless
, “a narrow exception to the general rule” exists in A.R.S. § 12

- 820.01(A) : 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 exerc ise of an administrative function involving the determination of fundamental governmental policy.
See Schabel v. Deer Valley Unified Sch. Dist. No. 97 , 186 Ariz. 161, 164 (quoting Goss v. City of Globe , 180 Ariz. 229, 232 (App. 1994)). The burden to prove the statute’s applicability rests with the public entity asserting immunity. AlliedSignal , 182 F.3d at 695 (citing Fid. Sec. Life Ins. v. State, Dep’t of Ins. , 191 Ariz. 222 , 225 , ¶ 9 (1998) ). We construe A.R.S. § 12

- 820.01(A) narrowly and will find imm unity only if the statute “clearly applies.” Schabel , 186 Ariz. at 164 ; Cty

. of La Paz v. Yakima Compost Co. , 224 Ariz. 590, 603, ¶ 34 (App. 2010) (citing Doe ex rel. Doe v. State , 20 0 Ariz. 174, 176, ¶ 4 (2001)).

A. Legislative Function Immunity

¶11 A public en tity is immune from suit for acts or omissions involving the exercise of a legislative function. A.R.S. § 12

- 820.01(A)(1).

“ The County exercises its ‘ legislative function ’ by creating, defining, or regulating rights
, ” Yakima Compost , 224 Ariz. at 603, ¶ 35 (citations omitted)
, or prescribing a new plan or policy, Wennerstrom v. City of Mesa , 169 Ariz. 485, 489 (1991) (quotation omitted)

. Appellants argue the Board ’s decisionTOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

6 to approve specific traffic

- contro l measures at a specific intersection is not

a legislative function. 3 We agree.

¶12 Although a municipal

- level decision to adopt a street

improvement policy or to fund street construction generally is a legislative act, Wennerstrom , 169 Ariz. at 495; see also Kohl v. City of Phoenix , 215 Ariz. 291, 294

- 9 5 , ¶ ¶ 9 , 14

- 15 (2007) , the approval of a specific project that carries out th e existing policy is not, Wennerstrom , 169 Ariz. at 495 (noting the project at issue “merely carrie[d] out the [previously approved street

improvement] policy” and did not qualify as a legislative act )

. S ee also Galati v. Lake Havasu City , 186 Ariz. 131, 1 36 (App. 1996) (distinguishing between immune funding decisions and non

- immune spending decisions). Here, the County’s improvements to the Intersection merel y carried out an existing policy, and thus , the County was not performing a legislative function and is not protected from liability under A.R.S. § 12

- 820.01(A)(1).

B. Administrative Function Immunity

¶13 Governmental immunity also attaches to “the exercise of an administrative function involving the determination of fundamental governmental policy.” A.R.S. § 12

- 820.01(A)(2). Fundamental governmental policy involves the exercise of discretion and includes, inter alia
, “[a] determination of whether to seek or whe ther to provide the resources necessary for . . . [t]he construction or maintenance of facilities,” and “[a] determination of whether and how to spend existing resources.” A.R.S. § 12

- 820.01(B) (1)(b), (2); see also A Tumbling

- T Ranches v. Flood Control Di st. of Maricopa Cty. , 222 Ariz. 515, 537, ¶ 66 (App. 2009) (citing Kohl , 215 Ariz. at 295, ¶ 15).

¶14 The County argues that allocating funds for road maintenance and safety projects constitutes the determination of fundamental governmental policy. However, “ public administrative

3 The County argues Appellants waived this argument , and others, by failing to raise it in the trial court. But the court cannot misapply the law simply because a summary judgment motion is not properly opposed. See Ariz. R. Civ. P. 56(e) (“If the opposing party does not . . . respond, summary judgment if appropriate , shall be entered against that party.”) (emphasis added) . Additionally, “ when we are considering the interpretation and application of statutes, we do not believe we can be limited to the arguments made by the parties if that would cause us to reach an incorrect result. ” Evenstad v. State , 178 Ariz. 578, 582 (App. 1993) (citing Rubens v. Costello , 75 Ariz. 5, 9 (1952)).TOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

7 bodies make many decisions concerning allocation and expenditure of funds that could not be categorized as decisions involving the determination of fundamental governmental policy. ” Schabel , 186 Ariz. at 165. Indeed, the County’s br oad proposition “ runs counter to the recognized principl e that immunity statutes a re to be narrowly construed.” A Tumbling

- T

, 222 Ariz. at 537, ¶ 67 ); see also Schabel , 186 Ariz. at 165

- 66 (“Were every governmental decision to allocate or expend funds pro tected by absolute immunity, immunity would be the rule and liability the exception. Such a state of affairs would contradict express legislative intent and our common law.”) ; Galati , 186 Ariz. at 136 (“[W]e decline to construe the immunity statutes to gi ve a city absolute immunity for all actions affected by its spending priorities. ”)

. ¶15 T o account for Arizona’s preference for governmental liability:

[C] ourts [analyzing whether a particular act involv e s fundamental governmental policy] have distinguished hi gh

level policymaking decisions, which include promulgating rules and regulations, from operational decisions, which more often involve day

- to

- day implementation of a regulatory scheme. Policymaking decisions are absolutely immune, while operational decis ions implementing such policy are not, even where they involve the exercise of some discretion. Hence, the relevant inquiry is whether the [government ]’ s decisions were limited to policymaking decisions or whether they also included operational decisions and exposed the [ government ] to tort liability.
A Tumbling

- T

, 222 Ariz. at 537, ¶ 67 (citing Kohl , 215 Ariz. at 295

- 96
, ¶ ¶ 1 9

- 21 ) ; accord Warrington ex rel. Warrington v. Tempe Elementary Sch. Dist. No. 3
, 187 Ariz. 249, 252 (App. 1996) (quoting Evenstad , 178 Ariz. at 582)

. Thus, the statute provides immunity only for “such matters as a decision as to the direction and focus” of an objective, but not for operational actions and decisions necessary to implement the chosen objectives. Doe , 200 Ariz. at 17 6, ¶ 6 (quoting Fid. Sec. , 191 Ariz. at 225, ¶ 11).

¶16 For example, in A Tumbling

- T , a county flood control district argued its decision to construct flood

- control projects on the Gila River involved the exercise of fundamental governmental policy under A.R.S

. § 12

- 82 0 .01 (A)(2) and exempted it from suit related to the construction of individual projects. 222 Ariz. at 536, ¶ 64. This Court held that the “decision to alleviate flooding .

. . was undoubtedly a policymakingTOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

8 decision, involving the expenditure of significant funds and also coordination with the governor’s office as well as various state and federal agencies.” Id. at 537, ¶ 68. However, “the [d]istrict’s implementation of its overall flood

- control plan was operational in that it involved the exer cise of professional engineering judgment.” Id. And while the policymaking decision was immune, the individual operational decisions were not. Id. at 538, ¶ 72 ; see also Doe , 200 Ariz. at 177, ¶ 10 (explaining that decisions related to establishing teac her certification requirements and procedures for processing applications and investigating applicants are absolutely immune fundamental governmental policy acts , while the processing of a particular application in accordance with those requirements and procedures is not); Sanchez ex rel. Gordon v. City of Tucson , 189 Ariz. 429, 432 (App. 1997) (concluding the adoption of a comprehensive roadway illumination program constituted fundamental governmental policy shielded by A.R.S. § 12

- 820.01 while “low leve l negligence such as failing to erect a sign” was not), vacated in part on other grounds , 191 Ariz. 128 (1998); Schabel , 186 Ariz. at 166 (explaining that a government entity is absolutely immune for its decision to install a playground, but “the decisions as to what equipment and safety measures to install would not enjoy immunity from legal action”) (citation omitted); Warrington , 187 Ariz. at 252 (holding that “one employee’s decision whether to place a bus stop at one point or another [was] an operation al decision, not a fundamental policy decision”)

. ¶17 We agree with Appellants that t he County’s decision to operate and maintain a two

- way stop at the Intersection, rather than a four

way stop, was not a decision on the direction and focus of an objecti ve or a high

- level policymaking decision. See Rogers v. State , 459 P.2d 378, 381 ( Haw. 1969) ( “[S] uch matters as the kinds of road signs to place and where to place them, and which center line stripings to repaint and when to repaint them, did not require evalu ation of policies but involved implementation of decisions made in everyday operation of governmental affairs. ” ). The decision was simply one of many day

- to

- day acts taken by the County, through its agents and the Board, to further the County’s larger pol icy

- driven roadway analysis process

. Accordingly
, t he decision to maintain a two

- way stop at the Intersection was an operational decision not subject to immunity under A.R.S. § 12

- 820.01(A)(2).

¶18 T he County relies heavily up on the fact that the decision reg arding the particular countermeasure to be employed at a particular intersection involve s “judgment, discretion, [and] weighing of alternatives. ” Warrington , 187 Ariz. at 253 (quoting Hanson ex rel. Hanson v. Vigo Cty. Bd. of Comm’rs , 659 N.E.2d 1123, 1125

- 26 (Ind. Ct. App. 1996))

. ButTOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

9 t he exercise of discretion is important only to the extent it is used to formulat e policy :
Even where discretion is exercised, administrative decisions within government do not necessarily involve dete rminations of fundamental governmental policy. To be absolutely immune, therefore, fundamental governmental policy is the element which, first and foremost, must be present in the decision making process.

. . . The term “discretion” is used in the statut e only to define an essential characteristic of determinations involving fundamental governmental policy.

Fid. Sec. , 191 Ariz. at 225, ¶ 10 ; see also Greathouse v. Armstrong , 616 N.E.2d 364 , 366

- 67 (Ind. 1993) (“ The critical inqui ry associated with the tes t [for distinguishing decisions involving the formulation of basic policy from those involving only the execution or implementation of that policy ] is ‘ not merely whether judgment was exercised but whether the nature of the judgment called for policy consi derations. ’ ” ) ( quotation omitted)

. The fact that County employees could and did exercise professional judgment in deciding between competing countermeasures at a particular location does not change the nature of the decision from operational to policymaking . To the contrary
, the need for professional judgment reinforces the character of the decision as operational

. See Warrington , 187 Ariz. at 253 (concluding a school district was not immunized from liability for the placement of individual bus stops where the placement decision was made by an employee, in the exercise of his discretion, as part of the day

- to

- day performance of his job).

¶19 We likewise reject the suggestion that the County’ s decision is immune under A.R.S. § 12

- 820.01(A)(2) because it implicate s a policy decision to “ avoid[] implementing too many 4

- way stop signs.” T here is no evidence indicating the County adopted a policy against multiway stops. Moreover, a lthough the adopti on of such a policy might be immune, as explained above
, its application remain s operational.

¶20 The County also relies up on Kohl to argue it is nonetheless entitled to immunity for i t s operational decision as it “flowed directly from” the decision to implement a roadway analysis process. Th e County errs in relying upon Kohl under the facts of this case

. In Kohl , the plaintiffs sued the City of Phoenix for wrongful death after their teenage son was killed in an automobile accident at an intersection without a traffic signal. Kohl
, 215 Ariz. at 292, ¶ 2. O u r supreme court found the municipality was absolutely immune from suit where the alleg ation of negligence in failing to install aTOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

10 traffic signal depended entirely upon the municipality ’s policy

- level decision defining how it would identify and prioritize d angerous intersections for signalization. Id. at 296

- 97 , ¶¶ 2 3
, 26

. B ecause the intersection at issue was never identified as a priority , the municipality never had the opportunity to exercise its own engineering judgment

. Id. at 293, 296, ¶¶ 7, 23 . Th erefore, th e decision (or lack thereof) to place a traffic signal at that intersection “flowed directly from” the immune policy decision and was not operational. Id.

¶21 Unlike Kohl , the County’s decision to install a particular
countermeasure at the Intersection here did not flow automatically from a policymaking decision to monitor and investigate traffic accidents within the County’s jurisdiction. Rather, the County exercised independent judgment when it chose to evaluate the conditions sur rounding the Intersection and select from among the available countermeasures. Th is operational decision is not immunized as part of the fundamental policymaking roadway analysis process.

¶22 In the absence of immunity, the County remains liable if it breach e s its duty to maintain its roadways in a reasonably safe condition. Goss , 180 Ariz. at 232

- 33. The extent of the County’s knowledge and whether it acted reasonably in choosing not to employ a multiway stop are disputed questions of fact precluding summar y judgment in favor of either party. See id. at 233; Bach v. State , 152 Ariz. 145, 147 (App. 1986) (“ What is reasonable on the one hand and negligent on the other will depend upon
t he particular facts of the case. The general rule is that ‘where reasonab le people could differ . . . the question of negligence is one of fact for a jury to decide. ’ ” ) (quoting Markowitz v. Ariz. Parks Bd. , 146 Ariz. 352, 357

- 58 (1985))

. Accordingly, the judgment in favor of the County is vacated.

II. M otion for Summary Judgment No. 2 : A ffirmative Defense Under A.R.S. § 12

- 820.03

¶23 On cross

- appeal, the County argues the trial court erred in finding it failed to establish an affirmative defense to Appellants’ claims pursuant to A.R.S. § 12

- 820.03 (A) as a matter of law

. That statute provides : A public entity or a public employee is not liable for an injury arising out of a plan or design for construction or maintenance of or improvement to transportation facilities, including highways, roads, streets, bridges or rights

- of

- way, if the plan or design is prepared in conformance with generally accepted engineering or design standards in effect at the time of theTOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

11 preparation of the plan or design and the public entity or public employee gives to the public a reasonably adequate warning of a ny unreasonably dangerous hazards which would allow the public to take suitable precautions.

A.R.S. § 12

- 820.03(A). W e construe A.R.S. § 12

- 820.03 narrowly. Glazer v. State , 237 Ariz. 160, 163, ¶ 12 (2015) (citing Doe , 200 Ariz. at 176, ¶ 4).

¶24 Summary jud gment on the County’s affirmative defense is appropriate if “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a) ; accord A.R.S. § 12

- 820.03(B) (“ If a genuine issue of material fact exists as to whether the public entity or public employee has met the requirements of subsection A of this section, the issue shall be resolved by a trial before and separate and apart from a trial on damages. ”)

. We rev iew the order denying a motion for summary judgment de novo

. Glazer , 237 Ariz. at 16 7 , ¶ 29 (citing Orme Sch. v. Reeves , 166 Ariz. 301, 309 (1990) )

. To successfully invoke t he affirmative defense found within A.R.S. § 12

- 820.03(A) , the County must prove all of its elements, including that “the plan or design conformed to engineering or design standards generally accepted when the plan or design was prepared, ” Glazer , 237 Ariz. at 164, ¶ 13 (citing Hegel v. O’Malley Ins. , 122 Ariz. 52, 56 (1979)), which th e parties generally agree are set forth in the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD)
, see Fed. Highway Admin., U.S. Dep’t of Transp., Manual on Uniform Traffic Control Devices for Streets and Highways (2009 ed. with 2012 rev s. ), as supplemented by the Traffic Control Devices Handbook (Handbook)
, see Inst. of Transp. Engineers, Traffic Control Devices Handbook ( Seyfried, Robert K. , ed. , 2d ed. 2013 )

. 4 See also 23 C.F.R. § 655.603(a) (adopting the MUTCD as “the n ational standard for all traffic control devices installed on any street . . . open to public travel”), (b) (requiring state MUTCDs and supplements to “be in substantial conformance with the National MUTCD”).

¶25 T he County d id not argue in its motion for summary judgment that the measures adopted to monitor , control, and warn of speed limits at the Intersection complied with generally accepted standards, despite Appellants’ focus up on these purported deficiencies with in their

4 For ease of reference, we cite the current versions of these manuals

. T here have been no material changes to the relevant provisions of the MUTCD since the date of the improvements to the Intersection, and the County cites the current version of the Handbook without objection from Appellant.TOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

12 complaint. Thus, to the extent Appellants’ claims arise from those circumstances, the County has failed to establish its entitlement to summary judgment. See United Bank of Ariz. v. Allyn , 167 Ariz. 191, 196

- 97 (App. 1990) (“If the [moving party]’s motion failed to make a prima facie case . . . by omitting evidence of essential elements of its claim . . . then there was no basis for awarding summary judgment.”)

. ¶26 In stead, without any mention of speed

- control issues , the Coun ty argues the traffic

- control plan at the Intersection complies with generally accepted standards because it is consistent with the MUTCD

— even though th e manual does not mandate any particular traffic

- control configuration. See generally MUTCD at § § 2B. 05, 2B.07. T he County bears the burden of proof on its affirmative defense, Glazer , 237 Ariz. at 164, ¶ 13 (citing Hegel , 122 Ariz. at 56), and it cannot prove its compliance with a standard by simply pointing out that the prevailing standard lacks rigid requirements. Moreover, the 2000 Traffic S tudy the County relies upon to support its decision to maintain the two

- way stop acknowledges that a multi way stop wa s warranted under the MUTCD.

¶27 T he MUTCD explains that a four

- way stop “can be useful as a safety measure at intersections if certain traffic conditions exist.” MUTCD at § 2B.07. The decision to implement a multiway stop “ should be based on an engineering study ,” and may be justified if the intersection experiences

a high

- volume of traffic and there is a crash problem, “as indicated by 5 or more reported crashes in a 12

- month period that are susceptible to correction by a multiway stop installation,” such as right

- and left

- turn and right

- angle collisions. Id. The Ha ndbook provides further guidance as to when a multiway stop might be appropriate, urging adoption of “the least restrictive appropriate form of traffic control.” Handbook at 113 ; s ee also A.R.S. § 28

- 643 (granting local authorities discretion to “ place an d maintain the traffic control devices on highways under their jurisdiction as they deem necessary”).

¶28 Applying these authorities, the County describes the relevant standard as one of choosing the best option to avoid future accidents. To the extent the generally accepted standard for the plan or design of traffic

control devices truly incorporates a measure of discretion in the exercise of engineering judgment, the quest ion as to whether the County has complie d with th at standard is simply not subject to resolution via summary judgment and must be submitted to a jury

. See Bach , 152 Ariz. at 147. This is particularly true w here , as here, t he parties present competing expert testimony regarding the reasonableness of the County’ s actions

.TOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

13 ¶29 The County noneth eless asserts it complied with the MUTCD when it considered and rejected the multiway stop in favor of “the most expensive and effective countermeasure” recommended within the 2000 T raffic S tudy. But, as Appellants point out, the cost of the countermeasur e is irrelevant to its reasonableness , and the contents of that report are materially internally inconsistent.

¶30 The 2000 T raffic S tudy present s the County w ith four alternatives to improving safety at the Intersection:

1. Install four

- way stop signs on all approaches to the Intersection;

2. Deploy targeted enforcement of speeding violations near the Intersection ;

3. Install flashing warning beacons on stop signs on minor approaches to the Intersection from County 9th Street ; and

4. Buy and protect sight tr iangles.
On the following page, within a discussion of the accident rate reductions anticipated for each proposal, the report explain s that the third countermeasure “involves the installation of four advanced stop ahead warning signs supplemented with flas hers on all approaches.” Indeed
, the estimat ed cost of the third countermeasure includes the addition of two stop signs to the Intersection

. ¶31 Given these inconsistencies within the 2000 Traffic Study , it is unclear whether the third countermeasure contempl ated traffic

- control devices at all approaches to the Intersection and whether the calculated accident rate reduction for the third countermeasure was based upon installation of flashers at a two

- or four

- way stop. The parties’ dispute over the interpreta ti on of the 2000 Traffic S tudy creates a genuine issue of material fact as to whether the County adopted a plan “based on an engineering study” in compliance with the MUTCD

. ¶32 Under the facts of this case, a reasonable jury could conclude the County’s desi gn failed to comply with generally accepted standards

. Therefore, the County was not e ntitled to judgment as a matter of law onTOURTILLOT, et al. v. YUMA COUNTY Decision of the Court

14 its affirmative defense, and the trial court correctly denied its motion for summary judgment. 5

CONCLUSION

¶33 The judgment entered in favor of the County is vacated, the order denying the motion for summary judgment on the County’s affirmative defense is affirmed, and the case is remanded to the trial court for further proceedings.

5 Because the County did not prove its desi gn complied with generally accepted engineering requirements as a matter of law, we need not and do not address the remaining elements of the defense. See A.R.S. § 12

- 820.03(A).