Watson v.ApacheCounty – 5/6/2008

May 12, 2008

Arizona Court of Appeals Division One Holds A.R.S. § 12-820.02 Provides Immunity to Public Entities for Negligently Granting Approvals, but Not for Negligently Providing Information.

The Watsons contacted the Apache County Assessor’s Office, Planning and Zoning Department, and county attorney’s office to inquire whether they could build a fence across an easement on their property.  All three offices informed the Watsons they could build the fence so long as it was gated and the gate was kept unlocked.  The Watsons relied on this advice and built the fence with an unlocked gate.  Their neighbors then sued them for erecting a fence on the easement.

The Watsons filed a third-party complaint againstApacheCounty, alleging the county had negligently provided them with inaccurate information.  On a motion for summary judgment, the trial court ruled thatApacheCounty had qualified immunity under A.R.S. § 12-820.02, which provides immunity for “approvals” issued by county employees absent intent to injure or gross negligence. 

On appeal, the Watsons argued the information they sought from county employees was not “approval,” and so the County was not entitled to immunity under §12-820.02.  The Arizona Appeals Court agreed.  Equating the word “approval” with “authorization,” the court reasoned the Watsons were not seeking and did not even need, authorization to build the fence.  Rather, they were only seeking information they believed county employees could readily provide.  As the County was providing information, and not “approval,” they were not entitled to immunity under § 12-820.02.  The Court of Appeals reversed and remanded to the trial court.

Presiding Judge Ehrlich authored the opinion, Judges Hall and Snow concurred.