Hutcherson v. City of Phoenix

Decision Date02 July 1998
Docket NumberNo. CV-96-0615-PR,CV-96-0615-PR
Parties, 273 Ariz. Adv. Rep. 3 Luella HUTCHERSON and Alma L. Usher, Plaintiffs-Appellees, Cross-Appellants. v. CITY OF PHOENIX, a municipal corporation, Defendant-Appellant, Cross-Appellee.
CourtArizona Supreme Court

ZLAKET, Chief Justice.

¶1 On a Saturday morning at 11:26, City of Phoenix emergency operator Belinda Banda received a 911 call from Chiquita Burt, who said, "[S]omeone just keeps harassing me ... he's threatening to do something to my boyfriend's car." The "someone," she explained, was Craig Gardner, who was unhappy that she had earlier broken off their relationship.

¶2 Burt told the operator that Gardner had tried to assault her at a nightclub the previous evening, threatening to kill her and her family. She had gone to the Tempe and Phoenix police to get a restraining order, but was told that she would have to wait until the courts opened the following Monday. During the night, Gardner had tried to locate her, twice showing up at a friend's residence in the early morning hours. Burt fled to the apartment of her new boyfriend, Darryl Usher, a professional football player.

¶3 She further told Banda that Gardner knew where Usher lived and had just called saying he was coming over to "do something" to Usher's car. The 911 operator asked if Gardner was an ex-boyfriend. "Yeah, he is," she answered. "And um, my boyfriend [Usher] said if he comes over here, he's gonna shoot him."

¶4 Burt asked what she could do to deal with Gardner. Banda briefly described the process for obtaining a restraining order. Burt responded: "[B]ut I'm talking about, about right now. What can I do?"

Banda: "Where does he live? Nearby or something?"

Burt: "Yeah, he lives close."

Banda: "Well, how close is close to where you're at now?"

Burt: "I'm like five minutes, not even five minutes away."

¶5 The 911 operator then obtained the address Burt was calling from, including the apartment complex name and building number. Twice in the ensuing minutes, Banda told Burt that she would be sending an officer. "Well, we can have an officer come out there and take some information. If he happens to show up, though, before an officer gets there, you need to call us right away, okay, and tell us he's there now."

¶6 Burt repeated her concern that trouble might be brewing because of Gardner's threats and his all-night pursuit of her. "[A]nd I'm--I'm just trying to prevent somebody from getting hurt." Banda concluded the call by saying: "Okay, well, we'll send an officer out there, um like I said, if he happens to show up at the apartment before the officers first do, just call us back right away, okay?"

¶7 Twenty-two minutes after Burt's call to 911, Craig Gardner went through the front window of Usher's apartment and fatally shot both Darryl Usher and Chiquita Burt. He then put the gun to his own head and killed himself.

¶8 The victims' mothers brought wrongful death actions against the City of Phoenix for its handling of the 911 call. The plaintiffs claimed that the City was liable because the operator had improperly categorized Burt's call as Priority 3, the Phoenix Police Department's lowest rating, reserved for "service" or "report" calls of crimes after the fact. During this period, Priority 3 calls had an average response time of 32.6 minutes. Priority 1, or emergency "hot" calls for crimes in progress posing a threat of immediate personal danger, had an average response time of 4.4 minutes. Priority 2 calls, often used for domestic violence incidents, averaged 13.6 minutes.

¶9 The plaintiffs also alleged that Banda had negligently failed to prepare and convey a supplemental dispatch card to police radio personnel according to departmental policy, further hampering a response. When witnesses at Usher's apartment called 911 to report the shooting, Phoenix police arrived on the scene within seven minutes.

¶10 The jury found the City negligent and awarded Burt's mother $600,000, and Usher's mother $1.1 million. The jury assigned seventy-five percent of the liability to the City. The defense moved alternatively for a new trial, a remittitur, or judgment notwithstanding the verdict. The trial judge denied all motions and the City appealed.

¶11 The court of appeals affirmed the liability and damage verdicts, but reversed and remanded for a new trial on the apportionment of fault, concluding: "The evidence does not justify a verdict that the 911 operator was three times as much at fault for the wrongful deaths of Plaintiffs' decedents as Gardner, who intentionally shot and killed Plaintiffs' decedents." Hutcherson v. City of Phoenix, 188 Ariz. 183, 187, 933 P.2d 1251, 1255 (App.1996).


¶12 We review the trial judge's decision to deny post-trial motions for an abuse of discretion, recognizing that he had substantial latitude in deciding whether to upset the verdict. See Creamer v. Troiano, 108 Ariz. 573, 577, 503 P.2d 794, 798 (1972); Mammo v. State, 138 Ariz. 528, 533-34, 675 P.2d 1347, 1352-53 (App.1983). Our reason for deference is clear. "The judge sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record." Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978); see Creamer, 108 Ariz. at 575, 503 P.2d at 796 (A court's "ruling on additur, remittitur, and new trial, because of an inadequate or excessive verdict, will generally be affirmed, because it will nearly always be more soundly based than ours can be.").

¶13 We also review the evidence in a light most favorable to upholding the jury verdict. See McFarlin v. Hall, 127 Ariz. 220, 224, 619 P.2d 729, 733 (1980). Thus, if any substantial evidence exists permitting reasonable persons to reach such a result, we will affirm the judgment. See Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 1164, 1166 (App.1996).

¶14 The court of appeals' majority acknowledged this approach.

It is, of course, the invariable rule of this court that, where there is a dispute in the evidence from which reasonable [persons] could arrive at different conclusions as to the ultimate facts, we will not disturb the findings of a trial court or the verdict of a jury because we do not agree with the conclusion reached. On the other hand, if there is no evidence in the record which would justify such a conclusion by the triers of fact, it is not only our right, but our duty, to set aside a verdict.

Hutcherson, 188 Ariz. at 196, 933 P.2d at 1264 (quoting Spain v. Griffith, 42 Ariz. 304, 305, 25 P.2d 551, 551 (1933)).


¶15 We begin with the following question: In Arizona's comparative negligence scheme, can a jury compare the negligent conduct of one tortfeasor with the intentional conduct of another? When our legislature adopted the Uniform Contribution Among Tortfeasors Act (UCATA) in 1984, it eliminated the harshness of an all-or-nothing contributory negligence defense. See 1984 Ariz. Sess. Laws, ch. 237, § 1, codified at A.R.S. §§ 12-2501 through 12-2509 (1994). In 1987, lawmakers abolished joint and several liability. See 1987 Ariz. Sess. Laws, ch. 1, § 2, codified at A.R.S. § 12-2506(A) (1994). The statute now provides that a jury shall allocate the responsibility of each actor "in direct proportion to that person's percentage of fault." Id. The trier of fact may consider the conduct of both parties and nonparties, A.R.S. § 12-2506(B), apportioning relative degrees of fault "as a whole at one time." Id. § 12-2506(C).

¶16 Guiding this statutory revision was a desire to "increase the fairness of the tort system for both plaintiffs and defendants" by making each tortfeasor liable for only his or her share of fault, and no more. Scot Butler, III & G. David Gage, Comparative Negligence & Uniform Contribution: New Arizona Law, 20 Ariz. B.J. 16, 16 (1984); see also Dietz v. General Elec. Co., 169 Ariz. 505, 510, 821 P.2d 166, 171 (1991) (discussing the legislative history of UCATA and the right of contribution under the new statutory scheme).

¶17 A.R.S. § 12-2506(F)(2) defines "fault" as

an actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all of its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability and misuse, modification or abuse of a product.

See also Revised Arizona Jury Instructions (Civil), at 31 (3d ed.1997)(" 'fault' is an actionable wrong, plus causation"). The statutory definition is extremely broad. For example, it would seem to permit the comparison of negligence with strict liability. It also expressly includes "negligence in all of its degrees." Accordingly, recent cases have permitted a comparison of reckless, willful, or wanton conduct with negligent conduct. See Williams v. Thude, 188 Ariz. 257, 260, 934 P.2d 1349, 1351 (1997); Natseway v. City of Tempe, 184 Ariz. 374, 376-77, 909 P.2d 441, 443-44 (App.1995); Wareing v. Falk, 182 Ariz. 495, 500, 897 P.2d 1381, 1386 (App.1995).

¶18 Traditional legal principles prohibited comparing negligent and intentional conduct on the premise that the two were "different in kind." See Jake Dear & Steven E. Zipperstein, Comparative Fault and Intentional Torts: Doctrinal Barriers and Policy Considerations, 24 Santa Clara L.Rev. 1, 5 (1984); Jordan H....

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