Hutcherson v. City of Phoenix
| Decision Date | 08 October 1996 |
| Docket Number | CA-CV |
| Citation | 188 Ariz. 183,933 P.2d 1251 |
| Parties | Luella HUTCHERSON and Alma L. Usher, Plaintiffs-Appellees, Cross-Appellants, v. CITY OF PHOENIX, a municipal corporation, Defendant-Appellant, Cross-Appellee. 194-0202. |
| Court | Arizona Court of Appeals |
On February 24, 1990, Chiquita Burt called a City of Phoenix 911 operator and, initially, said that "someone just keeps harassing me" and he was threatening to do something to the car of her boyfriend, Darryl Usher. After further conversation, the 911 operator took Usher's address and said, "[W]e'll send an officer out there." About eighteen minutes later, Burt's ex-boyfriend, Craig Gardner, broke into Usher's apartment and shot and killed Usher, Burt, and himself. The victims' mothers filed wrongful death actions against the City, claiming that the 911 operator mishandled the call and that, but for this fault, police would have arrived at Usher's apartment in time to prevent the murders. The City denied that the 911 operator was at fault and claimed that all fault was Gardner's.
After a three-week trial, the jury awarded $600,000 to Plaintiff Hutcherson for the loss of her daughter and $1,100,000 to Plaintiff Usher for the loss of her son. The jury found the City seventy-five percent at fault and Gardner twenty-five percent at fault. After denying post-trial motions, the court multiplied the damages verdicts by the percentage of fault assigned to the City and entered judgments against the City in the amount of $450,000 for Plaintiff Hutcherson and $825,000 for Plaintiff Usher.
The City's appeal argues error in all elements of the case. Plaintiffs' cross-appeal argues error in assigning any fault to Gardner. We have jurisdiction pursuant to A.R.S. section 12-2101(B) and (F)(1) (1994).
We affirm the liability and damages verdicts. Pursuant to Rule 59(a)(8), Arizona Rules of Civil Procedure ("Rule"), we reverse and remand for new trial on apportionment of fault. 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.
An appellate court must view the facts in the light most favorable to sustaining the verdict and judgment. McFarlin v. Hall, 127 Ariz. 220, 224, 619 P.2d 729, 733 (1980). Because the litigation focused in microscopic detail on a four-and-a-half minute telephone conversation, we set forth a transcript of that tape-recorded call. The City's 911 calls are numbered in the order received. Burt's call on February 24 was number 106,572, meaning that the City's 911 operators handled about 1,940 calls a day in the first fifty-five days of 1990. We have heard the tape of Burt's 911 call; all voices on it sound relatively calm and controlled.
Operator (0):
This is 911. What is your emergency.
Chiquita Burt (C):
Um yes. I'm calling because someone just keeps harassing me and last night I got a restraining order on him and I can't get it through until Monday. So I was calling to see, what can I, what kind of process can I go through because he's threatening to do something to my boyfriend's car.
[Dialogue about addresses and phone numbers omitted.]
Prior to trial, the City moved for summary judgment on grounds that it owed no duty to Burt and Usher. The trial court denied the motion. The City's claim of error is based on out-of-state cases holding that the relationship created by a 911 call does not impose a duty of care on the agency receiving the call. See, e.g., Wanzer v. District of Columbia, 580 A.2d 127, 131-32 (D.C.1990); Galuszynski v. City of Chicago, 131 Ill.App.3d 505, 86 Ill.Dec. 581, 583, 475 N.E.2d 960, 962 (1985); Lewis v. City of Indianapolis, 554 N.E.2d 13, 16 (Ind.App.1990); Allen v. Anderson, 490 N.W.2d 848, 856 (Iowa App.1992). The City's cases all turn on recognizing a public-private/general-specific duty distinction. Arizona adopted this doctrine in Massengill v. Yuma County, 104 Ariz. 518, 523, 456 P.2d 376, 381 (1969), but abandoned it in Ryan v. State, 134 Ariz. 308, 310, 656 P.2d 597, 599 (1982) ().
The doctrine articulated in Ryan was that "the parameters of duty owed by the state will ordinarily be coextensive with those owed by others." Id. Because Ryan is the law in Arizona, we do not discuss the out-of-state cases cited by the City, except for Maple v. City of Omaha, 222 Neb. 293, 384 N.W.2d 254 (1986), which stated that "we are persuaded by the reasoning of the Arizona court in Ryan." Id. 384 N.W.2d at 260. In Maple, a motorcyclist sued the city after being hit by a police vehicle responding to a high-priority dispatch. Id. at 257. TheMaple court found "no credible evidence in this record that the 911 dispatchers, or others, acted improperly or imprudently in dispatching [the officer] on an emergency basis." Id. 384 N.W.2d at 261. As in this case, the city in Maple had a duty. See id. at 260. Unlike this case, however, the trier of fact in Maple found that the city did not breach its duty. Id. at 261.
The City also relies on Morton v. Maricopa County, 177 Ariz. 147, 865 P.2d 808 (App.1993), a Division Two opinion which held that a county had no duty to an unidentified decedent's survivors because:
The state's interest in identifying human remains is primarily to foster public safety through the investigation of suspected homicides. The identification of remains, of course, incidentally benefits friends and relatives. Because this is not the primary purpose, however, no relationship is created which would give rise to a duty to the Mortons.
Id. at 151, 865 P.2d at 812. We respectfully, but summarily, conclude that Morton cannot and does not revive the...
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