Purdy as Trustee of Survivors of Jones v. Metcalf in and for County of Pima

CourtCourt of Appeals of Arizona
Citation57 Arizona Cases Digest 4,502 P.3d 36
Docket Number2 CA-SA 2021-0039
Parties Amy PURDY, AS Wrongful Death Statutory TRUSTEE on Behalf OF the SURVIVORS OF Decedent Margery Ann JONES, and John Bross, Petitioners, v. Hon. D. Douglas METCALF, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Respondent, and Republic Services of Arizona Hauling, LLC; Republic Services, Inc., a Delaware Corporation; Isidro E. Rosas Hernandez and Jane Doe Rosas Hernandez, Real Parties in Interest.
Decision Date08 November 2021

57 Arizona Cases Digest 4
502 P.3d 36

Amy PURDY, AS Wrongful Death Statutory TRUSTEE on Behalf OF the SURVIVORS OF Decedent Margery Ann JONES, and John Bross, Petitioners,
Hon. D. Douglas METCALF, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Respondent,
Republic Services of Arizona Hauling, LLC; Republic Services, Inc., a Delaware Corporation; Isidro E. Rosas Hernandez and Jane Doe Rosas Hernandez, Real Parties in Interest.

No. 2 CA-SA 2021-0039

Court of Appeals of Arizona, Division 2.

Filed November 8, 2021

Wagstaff & Cartmell LLP, Kansas City, Missouri, By Jack T. Hyde, Jeffrey M. Kuntz, and Adam S. Davis, and Miller, Pitt, Feldman & McAnally P.C., Phoenix, By José de Jesus Rivera and Nathan B. Webb, Counsel for Petitioners

Humphrey & Petersen P.C., Tucson, By Andrew J. Petersen and Joseph H. Ricks, Ernest S. Bustamante & Associates PLLC, Phoenix, By Ernest S. Bustamante, and Wright Close & Barger LLP, Houston, Texas, By Thomas C. Wright and Jessica Z. Barger, Counsel for Real Parties in Interest

Vice Chief Judge Staring authored the opinion of the Court, in which Presiding Judge Espinosa and Judge Eppich concurred.

STARING, Vice Chief Judge:

502 P.3d 38

¶1 Special-action petitioners Amy Purdy and John Bross, plaintiffs in the underlying action, challenge the respondent judge's grant of partial summary judgment on the issue of punitive damages in favor of real parties in interest Republic Services of Arizona Hauling LLC, Republic Services Inc. (collectively, Republic), and Isidro Rosas Hernandez. The overarching issue is whether punitive damages are potentially recoverable in the underlying wrongful-death lawsuit, which arises from a motor-vehicle collision caused by a commercial truck driver, Hernandez, who was, among other things, allegedly using a cell phone at the time of the collision. For the reasons that follow, we accept special-action jurisdiction and grant relief.

Factual and Procedural Background

¶2 We view the facts and reasonable inferences therefrom in the light most favorable to the petitioners as the non-moving party. See Link v. Pima County , 193 Ariz. 336, ¶ 12, 972 P.2d 669 (App. 1998). On August 5, 2019, around 11:11 a.m., Hernandez, who was employed by Republic as a residential garbage truck driver, was driving eastbound on Tangerine Road in the Town of Oro Valley. The Peterbilt garbage truck he was driving had a gross vehicle weight of approximately 49,320 pounds, as well as complete sets of driving controls on both the left and right sides of the cab. At the time of the collision, Hernandez was using the controls on the right side. Margery Jones was stopped on North Innovation Market Drive at the intersection of Tangerine Road in her Honda Accord, with Bross, her husband, in the passenger seat. The light for northbound traffic on North Innovation Market Drive turned green, and Jones proceeded straight. Hernandez ran the red light, continuing on Tangerine Road into the intersection and collided with Jones's car, severely injuring Bross and killing Jones, who was pronounced dead at the scene.

¶3 In October 2019, Jones's surviving daughter, Purdy, and Bross filed this wrongful-death lawsuit against Republic and Hernandez (collectively, defendants), alleging claims of negligence; negligence per se; negligent hiring, training, supervision, and retention; negligent infliction of emotional distress; and punitive damages. The following came to light during discovery.

¶4 According to Republic's employee policy, operating the garbage truck from the right side of the cab is only permitted for trash pickup, during which the driver should never exceed fifteen miles per hour (mph).1 The speed limit for Tangerine Road at the site of the collision is forty-five mph. Hernandez was driving 51.45 mph in the 8.5 seconds leading up to the collision.

¶5 Hernandez had two cell phones in his possession at the time of the collision—a personal phone and one issued by Republic. At the collision scene, an Oro Valley police officer inspected the personal phone, checking

502 P.3d 39

the call and text logs to see if Hernandez had any calls or messages at the time of the collision. The phone showed a call to Hernandez's supervisor, Jose Flores, at 11:10:35 a.m., and Flores, who was standing nearby, explained to the officer that Hernandez had called him to report the collision. Hernandez's personal phone was released to him, and, months later, when he was asked to turn it over for the lawsuit, all the data had been deleted. Flores took Hernandez's work-issued cell phone and placed it in his desk drawer at the office. The phone's service was turned off due to inactivity, and, when Flores changed positions, his replacement sent the phone back to the service provider after finding it in the desk drawer. Republic's counsel was able to locate the phone and have it returned, but all the data from that phone had also been deleted.

¶6 Hernandez was charged with two counts of violating A.R.S. § 28-672, which makes a civil traffic violation a criminal misdemeanor when the violation causes serious physical injury or death. At his deposition, Hernandez invoked the Fifth Amendment to the United States Constitution, refusing to answer any questions related to his cell-phone usage at the time of the collision.

¶7 In April 2021, defendants filed a motion for partial summary judgment on the issue of punitive damages. They argued there was "no evidence that would persuade a rational trier of fact that ... Hernandez acted with an ‘evil mind.’ " Specifically, defendants asserted, "Running a red light at a speed slightly over the speed limit is nothing more than negligence." In addition, they maintained there was "insufficient evidence to prove that ... Hernandez was on a cell phone" and, even assuming he was, "[c]ell phone use alone ... is insufficient for punitive damages."

¶8 In their opposition to the motion for partial summary judgment, plaintiffs argued there was "ample evidence" that Hernandez "was using a cell phone while he ran a red light at high speed." They pointed out that an Oro Valley Police Department report placed the crash between 11:10:51 and 11:10:59 a.m., and Hernandez had phoned Flores at 11:10:35 a.m.—a call that lasted until 11:11:45 a.m. Plaintiffs also observed that there had been "substantial" data transfers on both of Hernandez's cell phones that morning, including at the time of the collision. To further support their claim that Hernandez had been using his phone, plaintiffs offered the affidavit of an expert who opined that Hernandez had been operating the truck on cruise control at the time of the collision. Because the truck was "traveling at a constant" 51.45 mph in the "8.5 second period prior to impact," the expert observed that Hernandez must have set the cruise control at that speed. In addition, plaintiffs maintained that, even if defendants were correct that cell-phone use alone does not support punitive damages, "there are numerous other factors present in this case that courts have held to support punitive damages," including speeding, running a red light, causing a severe crash, reckless driving, statutory violations, destruction of evidence, and dangerous driving history.

¶9 In their reply, defendants disputed that Hernandez had been on the phone with Flores at the time of the collision, pointing out that a 9-1-1 call reporting the collision came in at 11:10:49 a.m. They also asserted that any data usage had been the result of the network communicating with internet-enabled devices and did not establish Hernandez was actively using his phone. Additionally, they provided an affidavit from the Southwest Area Fleet and Equipment Manager, who stated that "[c]ruise control on the entire Republic fleet of Peterbilt trucks is disabled and only operable between 19-25 mph."

¶10 After hearing oral argument, the respondent judge granted the motion for partial summary judgment. The respondent explained that Hernandez's invocation of the Fifth Amendment "is not enough, by itself, to prove that he was distracted or did this intentionally or recklessly." The respondent further determined that the Oro Valley Police Department report would not be admissible at trial to show the time of the collision because "[t]here's no foundation as to where that number came from." The respondent thus concluded there was "no evidence" the collision had occurred after Hernandez initiated

502 P.3d 40

the call with Flores. He further determined plaintiffs had not met their burden of showing they were entitled to punitive damages by clear and convincing evidence. This petition for special action followed.

Special-Action Jurisdiction

¶11 Our decision to accept special-action jurisdiction is "highly discretionary." Ariz. R. P. Spec. Act. 3 bar committee note. "We do not favor accepting special action jurisdiction to review the propriety of interlocutory orders and pretrial rulings, such as orders granting or denying partial summary judgment ...." Piner v. Superior Court , 192 Ariz. 182, ¶ 8, 962 P.2d 909 (1998). Instead, "[a]ppeal after final judgment is generally the proper remedy for trial court errors in granting motions for summary judgment."...

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