Clouse v. STATE, DPS
| Decision Date | 15 December 1998 |
| Docket Number | No. 1CA-CV97-0598., No. 1CA-CV97-0508 |
| Citation | 984 P.2d 559,194 Ariz. 473 |
| Parties | Merlin Lyneer CLOUSE, individually, as surviving spouse of Norma Clouse and on behalf of Guy Michael Clouse, surviving son of Norma Clouse; Guy Michael Clouse, individually; Lisandro Salinas and Debra Maria Salinas, individually and as husband and wife; Amber Salinas, Lissandra Salinas and Nathaniel Salinas, minor children of Lisandro Salinas, Plaintiffs-Appellants, v. STATE of Arizona, DEPARTMENT OF PUBLIC SAFETY; A.E. Dobbins, Defendants-Appellees. Merlin Lyneer Clouse, individually, as surviving spouse of Norma Clouse and on behalf of Guy Michael Clouse, surviving son of Norma Clouse; Guy Michael Clouse, individually; Lisandro Salinas and Debra Maria Salinas, individually and as Husband and Wife; Amber Salinas, Lissandra Salinas and Nathaniel Salinas, minor children of Lisandro Salinas, Plaintiffs-Appellees, v. State of Arizona, Department of Public Safety, Maricopa County, Andrew Dobbins, Defendants-Appellants. |
| Court | Arizona Court of Appeals |
Coppersmith & Gordon P.L.C. by Andrew S. Gordon, Kristen B. Rosati, Phoenix, Attorneys for Appellants/Appellees Clouse and Salinas.
Grant Woods, Attorney General by John E. Birkemeier, Assistant Attorney General, Richard F. Albrecht, Assistant Attorney General Attorneys, Phoenix, for Appellees/Appellants State of Arizona and Dobbins.
¶ 1 A criminal was released due to alleged negligence by officers of the Department of Public Safety ("DPS") and the Maricopa County Sheriff's Office ("MCSO"), and he then victimized the Plaintiffs, who sued the officers and their employers. The trial court, in accordance with Arizona Revised Statutes Annotated ("A.R.S.") section 12-820.02(A)(1) (1989), instructed the jury that officers are liable for failure to retain an arrested person in custody only if the officers intend to cause injury or are grossly negligent. Plaintiffs argue that the statute is unconstitutional. We hold otherwise. We also hold that the trial court did not err in rejecting a "concert of action" instruction and in denying the State's motion for sanctions under Rule 68, Arizona Rules of Civil Procedure.
¶ 2 On April 29, 1995, David Van Horn stole a truck in Maricopa County and fled into Pinal County. MCSO Deputy Robert Judd took the theft report in Maricopa County and DPS Officer Andrew Dobbins arrested Van Horn in Pinal County, knowing that Van Horn had there committed an aggravated assault on a pursuing citizen. After talking with Deputy Judd, Officer Dobbins understood that Van Horn would be prosecuted in Maricopa County, where he stole the truck. Dobbins had the Pinal County jail hold Van Horn for Maricopa County, he faxed his report to Deputy Judd, and he did nothing further. Van Horn was given a timely initial appearance in Pinal County, and his bond was set at $25,000.
¶ 3 Van Horn was still in the Pinal County jail on May 4, when a MCSO van arrived to transport another inmate. On learning about Van Horn, the MCSO deputies made some calls and discovered that no complaint had been filed in Maricopa County because Deputy Judd had not yet filed a report. Van Horn was put into the MCSO van anyway. On the trip back to Maricopa County, however, the deputies decided that Van Horn had to be released because no complaint had been filed and it was more than 48 hours after initial appearance.1 So the deputies pulled over to the side of U.S. 60 and released Van Horn—who promptly stole another vehicle, drove to New Mexico, and committed several outrageous crimes.
¶ 4 Van Horn and a companion invaded the home of an elderly couple, they abused and terrorized the couple, and they set fire to the home and watched it burn, with the couple still inside. Mrs. Clouse died; Mr. Clouse survived. In the ensuing manhunt, Van Horn shot a deputy in the head, twice; the deputy survived.
¶ 5 Mr. Clouse and his son, and Deputy Salinas and his wife and children, sued the State of Arizona and Maricopa County, alleging that their officers were negligent and grossly negligent in failing to retain Van Horn in custody. When Defendants invoked A.R.S. section 12-820.02(A)(1), which requires proof of gross negligence on this claim, Plaintiffs moved for partial summary judgment, arguing that the statute violates the anti-abrogation clause of the Arizona Constitution. The motion was denied.
¶ 6 At the close of the liability portion of the bifurcated trial, Plaintiffs moved for a directed verdict on negligence on grounds that section 12-820.02(A)(1) was unconstitutional. The court denied the motion and rejected Plaintiffs' proposed negligence instruction. Regarding the officers, the court instructed on a gross negligence standard.
The jury apportioned fault as follows:
State of Arizona 0% Maricopa County 15% David Van Horn [the criminal] 50% Diane Wilson [his companion] 35%
¶ 8 The State moved for sanctions under Rule 68(b), Arizona Rules of Civil Procedure, because it had served $5,000 offers of judgment on each group of Plaintiffs. The motion was denied.
¶ 9 Plaintiffs appealed from the judgment in favor of the State, and the State appealed from the denial of Rule 68(b) sanctions. The appeals have been consolidated. We have jurisdiction pursuant to A.R.S. section 12-2101(B) (1994).
¶ 10 Arizona Revised Statutes Annotated section 12-820.02 provides as follows:
Statutes are presumed to be constitutional. See Pike v. Arizona Dep't of Transp., 261 Ariz. Adv. Rep. 29, 30, 1998 WL 30531 (App. Jan. 29, 1998). "The party asserting that a statute is unconstitutional has the burden of clearly demonstrating that it is." Id.
¶ 11 Plaintiffs argue that section 12-820.02(A)(1) is an unconstitutional abrogation of the common law right to sue the government for negligence. In Plaintiffs' view, requiring proof of gross negligence in this case violates article 18, section 6 of the Arizona Constitution, which provides as follows: "The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation." To put Plaintiffs' argument in context, we first discuss two landmark Arizona cases.
¶ 12 Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), abolished governmental immunity in Arizona. Id. at 392, 381 P.2d at 112. The court concluded that "where negligence is the proximate cause of injury, the rule is liability and immunity is the exception." Id. Next came Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982), which had facts rather similar to those here. Ryan sued the State after being shot by an inmate who escaped due to alleged negligence by State employees. See id. at 308, 656 P.2d at 597. The trial court granted summary judgment to the State on grounds that its employees owed a duty to the public but not to an individual. See id. at 308-09, 656 P.2d at 597-98. A divided court of appeals affirmed. See id. at 309, 656 P.2d at 598. The supreme court reversed; it abandoned the public duty/ private duty doctrine and held that, henceforth, "the parameters of duty owed by the state will ordinarily be coextensive with those owed by others." Id. at 310, 656 P.2d at 599.
¶ 13 The Ryan court tempered its holding by stating, "In electing to treat the state like a private litigant, we must hasten to point out that certain areas of immunity must remain." Id. The court also suggested that "the legislature may in its wisdom wish to intervene in some aspects of th[e] development" of remaining areas of governmental immunity. Id. Ryan concluded by articulating the test we will apply in the present case:
Employing the spirit of the Stone decision, we propose to endorse the use of governmental immunity as a defense only when its application is necessary to avoid a severe hampering of a governmental function or thwarting of established public policy. Otherwise, the state and its agents will be subject to the same tort law as private citizens.
¶ 14 In response to Ryan, the legislature enacted the Actions Against Public Entities or Public Employees Act (the "Act"), codified at A.R.S. sections 12-820 to 12-823. See 1984 Ariz. Sess. Laws ch. 285; Galati v. Lake Havasu City, 186 Ariz. 131, 133, 920 P.2d 11, 13 (App.1996). "The Act codified various common law doctrines that conferred absolute and qualified immunity on various public entities and employees." City of Tucson v. Fahringer, 164 Ariz. 599, 600, 795 P.2d 819, 820 (1990). The legislature recognized that strict application of sovereign immunity led to unfair and inequitable results, but it found that "the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done." Historical and Statutory Notes, 1984 Ariz. Sess. Laws ch. 285, § 1. The legislature declared the public policy of the state to be "that public entities are liable for acts and omissions of employees in accordance with the statutes and common law of this state." Id.
¶ 15 Plaintiffs argue that under Arizona common law, persons injured by police fault could recover by proving mere negligence. They cite Ryan, where the State negligently allowed an inmate to escape; Austin v. City of Scottsdale, 140 Ariz. 579, 684 P.2d 151 (1984), where a dispatcher negligently processed a phone call; and Hutcherson v. City of Phoenix, 188 Ariz. 183, 933 P.2d 1251 (App.1996), vacated on other grounds, 192 Ariz. 51, 961 P.2d 449 (1998),
where a 911 operator negligently...
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