Hutto v. Francisco

• Decision Date: 03 March 2005
• Docket Number: No. 1 CA-CV 03-0678.,1 CA-CV 03-0678.
• Citation: 107 P.3d 934,210 Ariz. 88
• Parties: Jana L. HUTTO, mother and surviving parent of Jared R. Francisco, decedent, Plaintiff-Appellant, Cross Appellee, v. Warren Barton FRANCISCO, III and Rhonda R. Francisco, husband and wife, Defendants-Appellees, Cross Appellants.
• Court: Arizona Court of Appeals

107 P.3d 934

210 Ariz. 88

Jana L. HUTTO, mother and surviving parent of Jared R. Francisco, decedent, Plaintiff-Appellant, Cross Appellee, v. Warren Barton FRANCISCO, III and Rhonda R. Francisco, husband and wife, Defendants-Appellees, Cross Appellants.

No. -0678.

Court of Appeals of Arizona, Division 1, Department B.

March 3, 2005.

Law Offices of Gregg A. Thurston, P.C. By Gregg A. Thurston, Phoenix, Attorneys for Plaintiff-Appellant, Cross Appellee.

Murphy, Lutey, Schmitt & Fuchs, P.L.L.C. By Michael R. Murphy and Milton W. Hathaway, Jr., Prescott, Attorneys for Defendants-Appellees, Cross Appellants.

OPINION

LANKFORD, Presiding Judge.

¶ 1 This appeal requires us to decide whether a vehicle owner may bear tort liability for a death arising from the absence of a safety belt. Specifically, may a jury find that the owner must maintain the safety belt as part of his duty to keep his vehicle in safe operating condition? Is state tort law liability permitted despite the existence of federal safety regulation of vehicle manufacturers?

¶ 2 We answer both of these questions affirmatively. Accordingly, we reverse the superior court's summary judgment for Defendant vehicle owners.

¶ 3 Sadly, this case involves the death of the fifteen-year-old son of Defendant Warren Francisco III and of Plaintiff Jana L. Hutto. Their son was driving a 1971 Chevrolet pickup truck owned by himself and his father. The son was involved in a single-vehicle accident in which he was ejected from the vehicle. The truck lacked any safety belts.

¶ 4 The 1971 model truck was manufactured with safety belts.¹ At the time, federal law did not yet require safety belts, but the manufacturer had installed them.

¶ 5 Defendant and his son purchased the truck in 1999.² The truck then lacked the belts, but retained the cutouts in the seat for the belts. Defendant refurbished the truck after he purchased it, but did not replace the missing belts.

¶ 6 Plaintiff alleged that Defendants were negligent. The superior court granted summary judgment in favor of Defendants Warren Francisco III and his wife. The court apparently decided that, as a matter of law, the failure to reinstall safety belts in their vehicle was not unreasonable and could not constitute negligence. Plaintiff timely appealed. Our jurisdiction rests on Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003). In a timely cross-appeal, Defendants contend that the court erred in ruling that this action is not preempted by federal law.³

¶ 7 We first address Defendants' argument that this action is preempted by federal law. We review federal preemption issues de novo. Hill v. Peterson, 201 Ariz. 363, 365, ¶ 5, 35 P.3d 417, 419 (App.2001). State law is preempted by federal law in three instances: (1) express preemption, when Congress explicitly defines the extent to which an enactment preempts state law; (2) field or implied preemption, when state law regulates conduct in a field Congress intended the federal government to occupy exclusively; and (3) conflict preemption, when state law actually conflicts with federal law. Eastern Vanguard Forex, Ltd. v. Ariz. Corp. Com'n, 206 Ariz. 399, 405, ¶ 18, 79 P.3d 86, 92 (App.2003) (citations omitted). Because Defendants do not clearly indicate how this action is preempted, we will address each. However, federal law does not preempt this tort action on any of these grounds.

¶ 8 Express preemption does not bar this action. Defendants rely on the National Traffic and Motor Vehicle Safety Act of 1966, Pub.L. 89-563, 80 Stat. 718, and the Federal Motor Vehicle Safety Standards, 49 U.S.C. § 30101, et seq. (2004) (formerly 15 U.S.C. § 1381 et seq.). However, Defendants cite no preemption provision. On the contrary, Congress disavowed such a purpose: "Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law." 49 U.S.C. § 30103(e) (2004) (formerly 15 U.S.C. § 1397(k)). See Geier v. Am. Honda Motor Co., 529 U.S. 861, 867-68, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (Safety Act forbids state safety standards that conflict with federal standards, but quoted language preserves state law tort actions, subject only to conflict preemption principles.).

¶ 9 Field or implied preemption also does not preclude this action. Defendants rely on Hernandez-Gomez v. Volkswagen, 201 Ariz. 141, 32 P.3d 424 (App.2001). Hernandez-Gomez held that the Federal Motor Vehicle Safety Standards impliedly preempted a product liability action against a vehicle manufacturer. Id. at 144-45, ¶ 13, 32 P.3d at 427-28 (citing Geier, 529 U.S. at 866, 120 S.Ct. 1913). Unlike Hernandez-Gomez and the other cases cited by Defendants, however, this action is not against a manufacturer, and the Act regulates only manufacturers. Instead, this case is against individuals, whose conduct is not regulated by the standards. Federal safety regulation of vehicle manufacturers does not occupy the field of tort liability among individuals who are owners or operators of vehicles or passengers in them.

¶ 10 Nor does preemption arise from conflict between state law and federal statutes. The Federal Motor Vehicle Safety Standards required passenger cars manufactured after January 1, 1968 to include seatbelts, and pickup trucks manufactured after January 1, 1972⁴ to include the same. Defendants assert that this creates a conflict. Actual conflict between federal and state law occurs, for purposes of preemption, when it is impossible to comply with both federal and state law, or "where state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Hernandez-Gomez, 201 Ariz. at 142-43, ¶ 3, 32 P.3d at 425-26 (citation omitted). Defendants have not demonstrated, nor have we found, an actual conflict. The Federal Motor Vehicle Safety Standards mandate the equipment that the manufacturers are required to install, while this action involves the duty of subsequent owners to maintain⁵ their vehicles in a safe condition. Accordingly, the court did not err in ruling that this action is not preempted by federal law.

¶ 11 We now turn to whether Plaintiff has a viable tort claim under state law. Plaintiff's claim should not have been rejected by summary judgment. Summary judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). In reviewing a summary judgment, we determine de novo whether questions of material fact exist and whether the court properly applied the law. Allstate Ins. Co. v. Universal Underwriters, Inc., 199 Ariz. 261, 263, ¶ 3, 17 P.3d 106, 108 (App.2000). We hold that Plaintiff is entitled to a jury determination of her claim that Defendants failed to maintain the vehicle in a safe condition.

¶ 12 Plaintiff first argues that Defendants were negligent per se because they failed to reinstall the safety belts, thus allowing the truck to be driven in an unsafe condition in violation of A.R.S. § 28-921(A)(1)(a) (2004). "Negligence per se applies when there has been a violation of a specific requirement of a law." Griffith v. Valley of the Sun Recovery and Adjustment Bureau, Inc., 126 Ariz. 227, 229, 613 P.2d 1283, 1285 (App.1980) (citation omitted).

¶ 13 However, the statute involved, A.R.S. § 28-921(A)(1)(a), does not create a sufficiently specific standard by which conduct is to be measured. It provides only a general principle that vehicles must be safely maintained, and does not specifically require safety belts. The statute provides:

A. A person shall not:

1. Drive or move and the owner shall not knowingly cause or permit to be driven or moved on a highway a vehicle or combination of vehicles that:

(a) Is in an unsafe condition that endangers a person.

A.R.S. § 28-921(A)(1)(a).

¶ 14 Such a general standard does not support negligence per se. "The statute or regulation must `proscribe certain or specific acts' to support a finding of ... negligence per se." Jefferson L. Lankford & Douglas A. Blaze, The Law of Negligence in Arizona § 3.05[2] (3d ed.2004) (quoting Griffith, 126 Ariz. at 229, 613 P.2d at 1285). "Therefore, if a statute defines only a general standard of care ... negligence per se is inappropriate." Id. Arizona courts have deemed similarly general statutes inadequate for negligence per se. See Deering v. Carter, 92 Ariz. 329, 333, 376 P.2d 857, 860 (1962) (jury instruction was erroneous that stated that the failure to drive an appropriate reduced speed when approaching or crossing an intersection or hill crest in the presence of an actual or potential hazard was negligence per se); Griffith, 126 Ariz. at 229, 613 P.2d at 1285 (violation of the statute authorizing repossession without judicial process if it can be accomplished without a breach of the peace is not negligence per se because the statute does not proscribe certain or specific acts). See also Snyder v. Keckler, 175 W.Va. 268, 332 S.E.2d 281, 283 (1985) (violation of statute requiring all motor vehicles driven on highways be in good working order and safe mechanical condition is not negligence per se). Accordingly, negligence per se does not apply.

¶ 15 Although Defendants were not negligent per se, a jury might find negligence under the common law standard. Negligence requires proof of a duty owed to the plaintiff, a breach of that duty, an injury proximately caused by that breach, and damage. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983).

¶ 16 The superior court correctly found that Defendants had a duty not to expose users of the vehicle to an unreasonable risk. The owner of a vehicle has a duty to maintain his vehicle in a reasonably safe condition. See A.R.S. § 28-921(A)(1)(a). See also Siverson v. Martori, 119 Ariz. 440, 443, 581 P.2d 285, 288 (App.1978) (owners of motorcycle owed duty to keep it in...