Natseway v. City of Tempe

• Decision Date: 08 August 1995
• Docket Number: CA-CV,No. 1,1
• Citation: 184 Ariz. 374,909 P.2d 441
• Parties: Allen NATSEWAY and Armida Natseway, husband and wife, surviving parents of Virginia Marie Natseway, deceased, Plaintiffs-Appellants, v. CITY OF TEMPE, a municipal corporation, and Les Gray, Defendants-Appellees. 95-0007.
• Court: Arizona Court of Appeals

Page 441

909 P.2d 441

184 Ariz. 374

Allen NATSEWAY and Armida Natseway, husband and wife, surviving parents of Virginia Marie Natseway, deceased, Plaintiffs-Appellants, v. CITY OF TEMPE, a municipal corporation, and Les Gray, Defendants-Appellees.

No. 1 CA-CV 95-0007.

Court of Appeals of Arizona Division 1, Department E.

Aug. 8, 1995.

Review Denied Jan. 17, 1996.

[184 Ariz. 375] Law Offices of Ronald D. Mercaldo, Ltd. by Ronald D. Mercaldo, Anthony J. Wiggins and John W. McDonald, Tucson, for plaintiffs-appellants.

Ronald L. Dunham and Andrew B. Ching, Asst. Tempe City Attys., Tempe, for defendants-appellees.

OPINION

KLEINSCHMIDT, Presiding Judge.

During the early morning hours of a day in October 1992, a Mesa police officer became suspicious of a car travelling east on Broadway Road in Mesa. He began following the car, and after observing two traffic violations and learning that the car's insurance had been canceled or had expired, he activated his overhead lights and tried to stop the car. A chase ensued during which the car reached speeds up to eighty-five miles per hour and passed through both green and red lights at several intersections. As the chase continued, the car headed towards Tempe. The pursuit ended when the car ran a red light at the intersection of Guadalupe and Price roads and collided with another car that was travelling south on Price. The driver of the other car, the Plaintiffs' daughter, was killed in the collision.

Defendant Les Gray, a Tempe police officer, had learned of the pursuit in progress by radio and had gone to the intersection of Price and Guadalupe. He parked near the northeast corner of the intersection to observe the pursuit. He did not attempt to block the intersection to prevent cross-traffic from entering the path of the pursuit because that was not his normal practice and because traffic was light. There is some dispute as to how long Officer Gray was at the intersection prior to the accident, but it is generally agreed that he arrived there at least one minute prior to the collision.

The Plaintiffs filed a complaint for wrongful death against the City of Tempe and its officer ("Tempe"), and the City of Mesa and its officer ("Mesa"). The complaint alleged that Mesa was negligent in pursuing the fleeing automobile and that Tempe negligently failed to warn the Plaintiffs' daughter of the approaching pursuit. It also alleged that both cities negligently supervised and trained their officers.

Both Tempe and Mesa denied negligence and named the driver of the pursued car, Jesus Mendoza, as a nonparty at fault. Prior to trial, the Plaintiffs settled with Mesa. Mesa was dismissed from the suit, and Tempe then listed Mesa as a nonparty at fault.

At every stage of the proceedings, the Plaintiffs unsuccessfully argued that Tempe could not compare its negligence with the fault of Mendoza because Mendoza acted intentionally and Tempe had a duty to prevent Mendoza from causing the very incident that resulted in their daughter's death. The Plaintiffs also argued unsuccessfully that Tempe could not compare its fault with that of Mesa because there was insufficient evidence that Mesa was a cause of the collision.

The jury returned a verdict of $5,000,000 in favor of the Plaintiffs. It found that the Tempe officer was three percent at fault; the City of Tempe was seven percent at fault; the Mesa officer was three percent at fault; the City of Mesa was seven percent at fault; and Mendoza was eighty percent at fault. The trial court later reduced the total damages to $1,500,000 and entered judgment against Officer Gray in the amount of $45,000 and against the City of Tempe in the amount of $105,000. The Plaintiffs argue on appeal that Tempe should not have been permitted to compare its negligence with the intentional acts of Mendoza, and that there was insufficient evidence on the issue of Mesa's causation to allow the jury to determine that Mesa was partially at fault.

THE TRIAL COURT WAS CORRECT IN PERMITTING TEMPE TO COMPARE ITS FAULT WITH THE FAULT OF MENDOZA

The Plaintiffs assert that it is against public policy to allow a negligent tortfeasor to reduce its liability by comparing its negligence to the intentional wrong of another which the tortfeasor had a duty to prevent. There are two interrelated facets to the Plaintiffs' argument. The first is the contention that by allowing a negligent tortfeasor to compare its fault to the intentional wrong of another, the negligent tortfeasor will substantially avoid, or escape, liability because a jury will not be able to resist the argument that the intentional actor was the real cause of the harm. The second facet of the argument is that those, like police officers, who have a duty to prevent others from causing harm and negligently fail to do so should not be permitted to reduce their fault by arguing that another person, in this case a criminal, caused or contributed to the harm which it was the very duty of the police to prevent.

The first facet of the Plaintiffs' argument is derived in part from several Kansas cases, discussed in detail below, which dealt with the failure of one tortfeasor to protect against the intentional acts of another. We conclude, however, that Mendoza cannot be considered an intentional tortfeasor in this case. At most, Mendoza was reckless or grossly negligent in causing the harm to the Plaintiffs' daughter. Although he was intentionally fleeing from the police and consciously disregarded a substantial risk of causing harm to others, he had no specific intent to harm the Plaintiffs' daughter.

The real crux of the problem is presented in the second facet of the Plaintiffs' argument. They say that to allow Tempe to compare its negligence with the fault of Mendoza, when it was Tempe's duty to act reasonably to prevent Mendoza from causing the very harm that occurred, dilutes or diminishes Tempe's duty because Tempe can shift all blame to Mendoza who was, particularly in the eyes of the jury, the direct cause of the harm. This, they contend, could result in Tempe avoiding all liability for its breach of duty. The essence of the argument is that Tempe had an overriding duty to prevent the harm because its duty encompassed the obligation to prevent Mendoza from causing the harm.

Despite Tempe's duty to prevent Mendoza from causing the harm, we believe that to place the entire responsibility for the accident on Tempe would be inconsistent with the principles of comparative fault as they are embodied in Ariz.Rev.Stat.Ann. ("A.R.S.") sections 12-2505 and 12-2506. In adopting our comparative fault scheme, the legislature intended that the trier of fact consider the fault of all persons who contributed to the harm and intended that each tortfeasor be responsible for only his or her percentage of fault and no more. See A.R.S. § 12-2506; Dietz v. General Elec. Co., 169 Ariz. 505, 510, 821 P.2d 166, 171 (1991).

A strong tendency to apply comparative fault principles regardless of the relationship between the parties and the nature of the duty owed is reflected in several Arizona cases. In Del E. Webb Corp. v. Superior Court, 151 Ariz. 164, 169, 726 P.2d 580, 585 (1986), the facts giving rise to the case occurred prior to the adoption of our comparative fault statute. Nevertheless, the supreme court permitted the defendant, a resort, to raise the defense of contributory negligence although the resort had negligently served alcohol to an obviously intoxicated patron who later drowned in the resort's swimming pool. The plaintiff argued that if the resort could plead contributory negligence, the resort's duty to protect the patron would be illusory because the patron would almost...