raff
05-30-2007, 05:48 PM
By MICHAEL HAYS
Tuesday, May 29, 2007 10:16 PM MST
A combination of alcohol and carbon monoxide likely killed Mark Tostado, but Lake Havasu City is immune from guilt, a judge ruled Friday.
Judge James Chavez ruled in Lake Havasu City's favor in a case centering on carbon monoxide (CO) in Bridgewater Channel and Tostado's 2003 drowning death.
Tostado, 31, of Huntington Beach, Calif., had a CO concentration of 40.6 percent and an alcohol concentration of 0.19 percent in his blood at the time of his May 25, 2003, drowning, according to court documents.
Juanita Tostado, a family member, sued the city in Mohave County Superior Court. She alleged that Lake Havasu City failed to take action to limit the number of boats in the Channel or to pass a no-idling ordinance in 2003.
In a five-page ruling issued by Chavez, the legal notion of “legislative immunity” is cited as justification for ruling on the city's behalf.
“The decision to warn the public of the hazards of CO or to exercise the city's police powers are proper legislative functions,” Chavez said. “As such, the city is entitled to absolute immunity for its actions or omissions.”
The state Legislature addressed this issue in 1984.
“While a private entrepreneur may readily be held liable for negligence within the chosen scope of his activity, the area within which government has the power to act for the pubic good is almost without limit and therefore government should not have the duty to do everything that might be done,” Chavez said.
Efforts by City Council to address the hazardous effects of CO poisoning began in 2003. Dr. Michael Ward delivered an initial National Institute for Occupational Safety and Health investigative report to then-City Manager Bruce Williams in December 2002.
Council asked for further analysis in April 2003, and eventually authorized $88,982 to commission a Sonoma Technology study on accumulation of this dangerous gas. Channel warning signs and public education also followed, the court ruling said.
City Attorney Paul Lenkowsky said officials acted appropriately to “warn users of the Channel of CO emissions and associated risks.”
Kristy Arevalo, Tostado's attorney, had not heard of Chavez's ruling when reached for comment Tuesday.
“It's news to me, but I guess we're going to appeal,” she said.
Arevalo said legislative immunity should not apply to this case.
“The rule in Arizona is legislative immunity is the exception, not the rule,” she said.
About six months ago, a similar lawsuit also ended with a ruling favorable to Havasu.
A jury in U.S. District Court ruled Dec. 7, 2006, that Lake Havasu City was not liable in the death of Eugene Heck, 26, of Fontana, Calif., and that carbon monoxide was not his cause of death.
Heck's body was found Sept. 1, 2003, in the Channel. An autopsy by then-Mohave County Medical Examiner Dr. Don Nelson said the drowning was the result of excessive drinking, heat exposure and a blow to the head.
CO is an odorless, invisible pollutant emitted from combustion engines. At high levels, CO replaces oxygen in the blood and extreme exposure may cause death. Symptoms of poisoning include dizziness, fatigue, headache, nausea and irregular breathing. Local safety officials strongly encourage visitors to leave waterways once CO gas levels reach 30.5 parts per million.
Tuesday, May 29, 2007 10:16 PM MST
A combination of alcohol and carbon monoxide likely killed Mark Tostado, but Lake Havasu City is immune from guilt, a judge ruled Friday.
Judge James Chavez ruled in Lake Havasu City's favor in a case centering on carbon monoxide (CO) in Bridgewater Channel and Tostado's 2003 drowning death.
Tostado, 31, of Huntington Beach, Calif., had a CO concentration of 40.6 percent and an alcohol concentration of 0.19 percent in his blood at the time of his May 25, 2003, drowning, according to court documents.
Juanita Tostado, a family member, sued the city in Mohave County Superior Court. She alleged that Lake Havasu City failed to take action to limit the number of boats in the Channel or to pass a no-idling ordinance in 2003.
In a five-page ruling issued by Chavez, the legal notion of “legislative immunity” is cited as justification for ruling on the city's behalf.
“The decision to warn the public of the hazards of CO or to exercise the city's police powers are proper legislative functions,” Chavez said. “As such, the city is entitled to absolute immunity for its actions or omissions.”
The state Legislature addressed this issue in 1984.
“While a private entrepreneur may readily be held liable for negligence within the chosen scope of his activity, the area within which government has the power to act for the pubic good is almost without limit and therefore government should not have the duty to do everything that might be done,” Chavez said.
Efforts by City Council to address the hazardous effects of CO poisoning began in 2003. Dr. Michael Ward delivered an initial National Institute for Occupational Safety and Health investigative report to then-City Manager Bruce Williams in December 2002.
Council asked for further analysis in April 2003, and eventually authorized $88,982 to commission a Sonoma Technology study on accumulation of this dangerous gas. Channel warning signs and public education also followed, the court ruling said.
City Attorney Paul Lenkowsky said officials acted appropriately to “warn users of the Channel of CO emissions and associated risks.”
Kristy Arevalo, Tostado's attorney, had not heard of Chavez's ruling when reached for comment Tuesday.
“It's news to me, but I guess we're going to appeal,” she said.
Arevalo said legislative immunity should not apply to this case.
“The rule in Arizona is legislative immunity is the exception, not the rule,” she said.
About six months ago, a similar lawsuit also ended with a ruling favorable to Havasu.
A jury in U.S. District Court ruled Dec. 7, 2006, that Lake Havasu City was not liable in the death of Eugene Heck, 26, of Fontana, Calif., and that carbon monoxide was not his cause of death.
Heck's body was found Sept. 1, 2003, in the Channel. An autopsy by then-Mohave County Medical Examiner Dr. Don Nelson said the drowning was the result of excessive drinking, heat exposure and a blow to the head.
CO is an odorless, invisible pollutant emitted from combustion engines. At high levels, CO replaces oxygen in the blood and extreme exposure may cause death. Symptoms of poisoning include dizziness, fatigue, headache, nausea and irregular breathing. Local safety officials strongly encourage visitors to leave waterways once CO gas levels reach 30.5 parts per million.