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Massengill v. Yuma County7/1/1969
County of Yuma, State of Arizona; Travis Yancey, Sheriff of Yuma County; and Earl W. Keenum, petitioners in this case -- hereinafter referred to as defendants -- petitioned for and have been granted a review from a decision of the Court of Appeals, Division One, which reversed an order and judgment of the Yuma County Superior Court granting the defendants' motion to dismiss the complaint on the grounds that it failed to state a claim upon which relief could be granted. 9 Ariz. App. 281, 451 P.2d 639. The decision of the Court of Appeals is vacated.
This being a motion to dismiss we take the facts pleaded in the complaint as true, and set them forth here basically as stated in the brief on appeal. On August 9, 1964, a head-on automobile collision occurred near Parker in Yuma County, Arizona, which resulted in the tragic deaths of five persons and a sixth totally disabled for life. The appellants brought the present wrongful death and personal injury actions against a number of defendants including Yuma County, Sheriff Travis Yancey and Deputy Sheriff Earl W. Keenum. Travis Yancey was the duly-elected, qualified and acting sheriff of Yuma County, Arizona, and Earl W. Keenum was his duly-appointed, qualified and acting deputy sheriff, acting within the course and scope of his employment.
During the late evening of August 8, 1964, and early morning of August 9, 1964, Earl W. Keenum was on duty in the parking lot used by patrons of the establishments known as Paradise Harbor and Sports Valley [who are also defendants in the court below but are not involved in this appeal]. Homer A. and Ruby Massengill, Administrators of the Estates of George B. Platt, II, deceased, and Billie M. Platt, deceased -- hereinafter referred to as plaintiffs -- contend that Keenum knew or
should have known that the foregoing establishments served alcoholic beverages, were frequented by minors, served alcoholic beverages to minors, and were located along a stretch of dangerous highway which was mountainous, winding and narrow, containing sharp curves and steep hills and was heavily traveled. Keenum was occupying his marked patrol car owned by Yuma County, which was equipped with an overhead flashing red light operated by a switch inside the car, which light when turned on, he knew or should have known from prior experience, would probably cause any driver being pursued to stop. Keenum's duty at that time included and required the apprehension and arrest of both parties to each sale of intoxicating beverages to minors and also included and required the apprehension and arrest of persons violating traffic laws and driving in an unsafe manner.
John Whaley and David Wood, each using his own car, drove out of the parking lot in a reckless manner at a high rate of speed. They proceeded down the highway side by side, and while driving in this manner passed the patrol car of Keenum which was parked near the highway. Keenum drove onto the highway, and followed behind them until the time of the accident, but made no effort whatsoever to apprehend them.
As alleged by plaintiffs in their complaint, the vehicles were being operated in violation of the laws of the State of Arizona in one or more or all of the following respects:
"(a) John Whaley was driving in a reckless manner, exceeding the speed limit, driving on the wrong side of the road, attempting to pass on a hill and on a curve, and driving while intoxicated.
"(b) David Wood was driving in a reckless manner, exceeding the speed limit, driving while intoxicated, and refusing t
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