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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

DEBORAH TOURTILLOT, et al.,

Plaintiffs/Appellants/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; VACATED IN PART; AND REMANDED

COUNSEL

Karnas Law Firm, P.L.L.C, Tucson

By M. David Karnas

Co-Counsel for Plaintiffs/Appellants/Cross-Appellees Deborah Tourtillot, John 

Tourtillot, Alora Dugan, Angelene Cabrales, Kirby Dugan, Brandon Phillips, 

and Lorena Tambo

FILED 1-15-2019
2

Davis Miles McGuire Gardner, P.L.L.C, Tempe

By Michael E. Medina Jr.

Co-Counsel for Plaintiffs/Appellants/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 Plaintiffs/Appellants/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-Appellant

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of 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 upon 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 

oversized 48-inch stop signs, signs warning of the upcoming stop signs, 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. The 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 west. After stopping at the 

Intersection and then attempting to cross, the vehicle was struck by a pickup 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 County’s negligent design, placement, 

maintenance, and operation of traffic-control devices at the Intersection 

caused the accident and resulting fatalities. In their complaint, Appellants 

alleged both that the County should have installed 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 fundamental 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 favorable 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. Through 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 relies are 

unpersuasive and represent a draconian departure from the traditional 

notions of notice and fairness that have 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 commissioning engineering 

studies to determine whether improvements are necessary to keep 

roadways within its jurisdiction safe. Thereafter, major 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 upon traffic accidents.

¶6 The County first employed a traffic engineering consultant to 

evaluate the safety of the Intersection after observing an increase in 

accidents in 1990. Although traffic at the Intersection was, at that time,

controlled solely by standard-sized 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), the County chose, with approval and funding from the Board, to

install oversized stop signs with flashing beacons on the County 9th Street 

approaches. In 2008, without having commissioned another study, the 

County placed warnings on the existing stop signs on County 9th Street that 

“Cross Traffic Does Not Stop.”

¶7 To support its motions for summary judgment, the County 

presented expert testimony that the Intersection “was designed, 

constructed and maintained consistent with generally accepted engineering 

and design standards at the time.” The expert opined that the Decedents’ 

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 year.

¶8 After taking 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 crossappealed. We have jurisdiction pursuant to 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 appealable, 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 for Summary Judgment No. 1: Absolute Immunity Under 

A.R.S. § 12-820.01

¶9 Appellants argue the trial court erred in finding the County 

absolutely immune because the County’s decisions to approve, fund, and 

maintain improvements to the Intersection are not entitled 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., 193 Ariz. 336, 341, ¶ 18 (App. 1998)).

¶10 Generally, “governmental immunity is the exception and 

liability is the rule.” Id. (citing AlliedSignal, 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 exercise 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 immunity 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, 200 Ariz. 174, 176, ¶ 4 (2001)).

A. Legislative Function Immunity

¶11 A public entity 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 decision 
TOURTILLOT, et al. v. YUMA COUNTY

Decision of the Court

6

to approve specific traffic-control measures at a specific intersection is not 

a legislative function.3 We agree.

¶12 Although a municipal-level decision to adopt a streetimprovement 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, 294-95, ¶¶ 9, 14-15 (2007), the approval of a specific project that carries 

out the existing policy is not, Wennerstrom, 169 Ariz. at 495 (noting the 

project at issue “merely carrie[d] out the [previously approved streetimprovement] policy” and did not qualify as a legislative act). See also Galati 

v. Lake Havasu City, 186 Ariz. 131, 136 (App. 1996) (distinguishing between 

immune funding decisions and non-immune spending decisions). Here, 

the County’s improvements to the Intersection merely 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 whether 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 

Dist. 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 broad proposition “runs counter to the 

recognized principle that immunity statutes are 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 protected 

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 give a city absolute immunity for all actions 

affected by its spending priorities.”).

¶15 To account for Arizona’s preference for governmental 

liability:

[C]ourts [analyzing whether a particular act involves 

fundamental governmental policy] have distinguished highlevel 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 decisions 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, ¶¶ 19-

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

176, ¶ 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. 

§ 12-820.01(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 policymaking 
TOURTILLOT, 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 exercise 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 teacher 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 level 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 operational decision, not a fundamental policy decision”).

¶17 We agree with Appellants that the County’s decision to 

operate and maintain a two-way stop at the Intersection, rather than a fourway stop, was not a decision on the direction and focus of an objective 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 evaluation 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 

policy-driven roadway analysis process. Accordingly, the 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 The County relies heavily upon the fact that the decision 

regarding the particular countermeasure to be employed at a particular 

intersection involves “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)). But 
TOURTILLOT, et al. v. YUMA COUNTY

Decision of the Court

9

the exercise of discretion is important only to the extent it is used to 

formulate policy:

Even where discretion is exercised, administrative decisions 

within government do not necessarily involve determinations 

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 statute 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 inquiry associated with the test [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 considerations.’”) (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 implicates a policy 

decision to “avoid[] implementing too many 4-way stop signs.” There is no 

evidence indicating the County adopted a policy against multiway stops. 

Moreover, although the adoption of such a policy might be immune, as 

explained above, its application remains operational.

¶20 The County also relies upon Kohl to argue it is nonetheless 

entitled to immunity for its operational decision as it “flowed directly from” 

the decision to implement a roadway analysis process. The 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. Our supreme court found the municipality was absolutely 

immune from suit where the allegation of negligence in failing to install a 
TOURTILLOT, 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 dangerous 

intersections for signalization. Id. at 296-97, ¶¶ 23, 26. Because 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. Therefore, the 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 surrounding the 

Intersection and select from among the available countermeasures. This

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

breaches 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 summary 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 

the particular facts of the case. The general rule is that ‘where reasonable 

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. Motion for Summary Judgment No. 2: Affirmative 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 the 
TOURTILLOT, 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 any unreasonably dangerous hazards which 

would allow the public to take suitable precautions.

A.R.S. § 12-820.03(A). We 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 judgment 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 review the order 

denying a motion for summary judgment de novo. Glazer, 237 Ariz. at 167, 

¶ 29 (citing Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990)). To successfully 

invoke the 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 the 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 revs.), 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 national 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 The County did 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 upon these purported deficiencies within their 

 

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

There 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

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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 Instead, without any mention of speed-control issues, the 

County argues the traffic-control plan at the Intersection complies with 

generally accepted standards because it is consistent with the MUTCD —

even though the manual does not mandate any particular traffic-control 

configuration. See generally MUTCD at §§ 2B.05, 2B.07. The 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 Study the County relies upon to 

support its decision to maintain the two-way stop acknowledges that a 

multiway stop was warranted under the MUTCD.

¶27 The 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 Handbook 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; see also

A.R.S. § 28-643 (granting local authorities discretion to “place and 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 trafficcontrol devices truly incorporates a measure of discretion in the exercise of 

engineering judgment, the question as to whether the County has complied

with that 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 where, as here, the 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 nonetheless 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 

Traffic Study. But, as Appellants point out, the cost of the countermeasure 

is irrelevant to its reasonableness, and the contents of that report are 

materially internally inconsistent.

¶30 The 2000 Traffic Study presents the County with 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 triangles.

On the following page, within a discussion of the accident rate reductions 

anticipated for each proposal, the report explains that the third 

countermeasure “involves the installation of four advanced stop ahead 

warning signs supplemented with flashers on all approaches.” Indeed, the 

estimated 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 contemplated 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 interpretation of the 2000 Traffic Study 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 design failed to comply with generally accepted standards. 

Therefore, the County was not entitled to judgment as a matter of law on 
TOURTILLOT, 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 design 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).