Rondelli v. Pima County, s. 2

• Decision Date: 25 July 1978
• Docket Number: Nos. 2,CA-CIV,s. 2
• Citation: 120 Ariz. 483,586 P.2d 1295
• Parties: Charles RONDELLI, Appellant, v. The COUNTY OF PIMA, a body politic, and the City of Tucson, a municipal corporation, Appellees. 2729, 2 2841.
• Court: Arizona Court of Appeals

Page 1295

586 P.2d 1295 120 Ariz. 483 Charles RONDELLI, Appellant,
v.
The COUNTY OF PIMA, a body politic, and the City of Tucson, a municipal corporation, Appellees. Nos. 2 CA-CIV 2729, 2 CA-CIV 2841. Court of Appeals of Arizona, Division 2. July 25, 1978.
Rehearing Denied Sept. 14, 1978.
Review Denied Oct. 5, 1978.

Page 1296

[120 Ariz. 484] Miller, Pitt & Feldman, P.C. by Janice A. Wezelman, Tucson, for appellant.

Everett, Bury & Moeller, P.C. by David C. Bury and Marshall Humphrey, III, Tucson, for appellee County of Pima.

Slutes, Browning, Zlaket & Sakrison, P.C. by Thomas A. Zlaket, Tucson, for appellee City of Tucson.

OPINION

HATHAWAY, Judge.

Plaintiff-appellant Charles Rondelli appeals from two summary judgments one in favor of defendant-appellee Pima County, and the other in favor of defendant-appellee City of Tucson. By stipulation of the parties, the appeals have been ordered consolidated.

On August 18, 1976, appellant and three other plaintiffs filed an action in tort and civil rights in the Pima County Superior Court against the State of Arizona, Pima County and the City of Tucson. The complaint alleged false arrest and imprisonment in Count One, abuse of process in Count Two, intentional and/or negligent infliction of emotional distress and the tort of outrage in Count Three, and violation of

Page 1297

[120 Ariz. 485] civil rights, pursuant to 42 U.S.C. § 1983, et seq., in Count Four. Appellant sought damages for his arrest on July 27, 1975, by a Pima County Deputy Sheriff acting pursuant to a bench warrant issued by a magistrate of the Tucson City Court. The criminal charge against appellant was subsequently dismissed in Tucson City Court on July 28, 1976.

The four cases were ordered severed. After answering appellant's complaint, Pima County filed a motion for summary judgment, asserting that Counts One and Four were barred by the statute of limitations and that Counts Two and Three failed as a matter of law to state claims, respectively, for abuse of process and outrage. Thereafter, the City of Tucson filed a motion for summary judgment on the same grounds. Appellant presented no opposition as to Count One, but did oppose the motions as to the remaining counts.

Appellant did not file his complaint until August 18, 1976, more than one year after his arrest, the day his claims for relief accrued. He does not challenge the rulings that the statute of limitations had run on his claim in Count One for false arrest and imprisonment. ¹ He does contend, however, that there was error in granting appellees' motions for summary judgment on Count Four ² of the complaint in that the claim for violation of civil rights under 42 U.S.C. § 1983 ³ was timely.

Congress has not enacted a statute of limitations applicable to suits arising under § 1983. In such circumstances, it is well settled that federal courts apply the most analogous state statute of limitations to these federally-created claims. Chambers v. Omaha Public School District, 536 F.2d 222 (8th Cir. 1976); Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962); O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914). Unlike some other states, Arizona has not enacted a statute of limitations which is specifically made applicable to § 1983 suits. The question then is which Arizona statute of limitations is most appropriate here.

Appellant urges that the applicable statute is A.R.S. § 12-542(1) which provides for a two-year limitation in actions for personal injury. He contends that the statute should apply here since the basis of the § 1983 claim is the tortious conduct constituting false imprisonment, abuse of process and the intentional infliction of emotional distress, and that though the limitations period for false imprisonment is one year, A.R.S. § 12-541, the limitations period for abuse of process and the intentional infliction of emotional distress is two years, A.R.S. § 12-542. Appellees argue that the applicable statute is A.R.S. § 12-541(3) which provides for a one-year limitation in actions "Upon liability created by statute, other than a penalty or forfeiture." The courts have divided on this issue. ⁴

Page 1298

[120 Ariz. 486] We agree with appellees, since analogizing the facts of a statutory Civil Rights Act claim to a common law cause of action fails to recognize significant and fundamental differences between the two. Teague v. Caterpillar Tractor Company, 566 F.2d 7 (7th Cir. 1977). "The Civil Rights Acts do not create 'a body of general federal tort law.' Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)." Beard v. Robinson, supra, 563 F.2d at 336.

In Arizona, " . . . a liability created by statute . . . " is a liability that comes into being solely by statute and one which had no existence prior to the enactment creating it. Where liability would exist in some form irrespective of the statute, it is not " . . . a liability created by statute . . . ." Maricopa County Municipal Water...