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AlliedSignal, Inc. v. Phoenix, City of

ELR Citation: 29 ELR 21312
Nos. No. 98-15901, 182 F.3d 692/(9th Cir., 06/28/1999)

The court holds that a city is not immune from a company's negligence suit for allegedly delivering contaminated water to the company's facilities. The company sought damages for the cost of replacing corroded pipes in a fire protection sprinkler system and a permanent injunction and/or writ of mandamus requiring the city to take all necessary measures to ensure that the water it provides is free of corrosive-inducing bacteria. The district court held that under Arizona's Actions Against Public Entities or Public Employees Act, the city was immune from the company's claims because the company was challenging a determination of fundamental government policy—the city's formulation of its water disinfection policy.

The court first holds that the district court erroneously concluded that the city was entitled to immunity. It is not apparent on the face of the complaint that the city was acting in an area of fundamental governmental policy. Nowhere in the complaint does the company allege that the city's formulation of its water disinfection policy was the cause of the excessive bacteria in water. Rather the complaint suggests the existence of negligence by the city in delivering tainted water. The court next holds that the district court erroneously dismissed the company's claims for damages. Given the narrow scope of governmental immunity, if the company can produce evidence showing such negligence, it may be able to prevail on its claims. Moreover, the company's complaint does not fail to state a claim that would entitle the company to relief under Arizona law.

However, the court then holds that the district court properly dismissed the company's claim for injunctive and mandamus relief. The company's request for a mandatory injunction and/or writ of mandamus is governed by mandamus considerations, and mandamus may not be used to instruct a public official how to exercise discretion. Moreover, the company has not properly alleged that the city violated any statutory or regulatory standards in the formation and implementation of its water disinfection policy.

A dissenting judge would hold that the city is immune from the company's complaint and that the pleadings are insufficient to raise a claim of negligence.

Counsel for Plaintiff
Thomas L. Hudson
Osborn & Maledon
2929 N. Central Ave., Ste. 2100, Phoenix AZ 85012
(602) 640-9000

Counsel for Defendant
Peter S. Modlin
Landels, Ripley & Diamond
350 Steuart St., San Francisco CA 94105
(415) 788-5000

Before Thomas, J., with Ferguson, J., concurring in part and dissenting in part