Ryan v. Napier
| Decision Date | 18 October 2017 |
| Docket Number | No. 2 CA-CV 2016-0155,2 CA-CV 2016-0155 |
| Citation | 406 P.3d 330 |
| Parties | Susan E. RYAN, as Administrator of Estate of Brian McDonald, Plaintiff/Appellee, v. Mark NAPIER, Pima County Sheriff; and Joseph Klein, Defendants/Appellants. |
| Court | Arizona Court of Appeals |
Dwyer Hernandez, P.C., Tucson, By Amy Hernandez, Counsel for Plaintiff/Appellee
Barbara LaWall, Pima County Attorney, By Nancy J. Davis, Deputy County Attorney, Tucson, Counsel for Defendants/Appellants
¶ 1 Pima County Sheriff Mark Napier and Deputy Joseph Klein appeal a jury verdict against them for injuries plaintiff Brian McDonald sustained when he was bitten by a sheriff's department K–9 police dog. Appellants argue the trial court erred by (1) allowing the case to proceed as a negligence action as opposed to a battery action, (2) placing the burden of proving justification on them rather than on McDonald, (3) allowing lay and expert witness testimony about United States Supreme Court use-of-force case law, and (4) rejecting their position that A.R.S. § 11–1025(B) prohibits an action for damages for injuries inflicted by a K–9 under the circumstances. For the reasons that follow, we affirm.
¶ 2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the jury verdict. Zuluaga ex rel. Zuluaga v. Bashas', Inc., 242 Ariz. 205, ¶ 2, 394 P.3d 32, 34 (App. 2017). On November 14, 2013, around 11:30 P.M., Pima County Sheriff's Deputy Matthew Dixon was driving south on a road in the Tucson foothills when McDonald, driving north in the wrong lane, nearly hit him head-on. Dixon called the incident in on his radio, activated his emergency lights, and made a U-turn, intending to stop the car for driving the wrong way and nearly causing a collision.
¶ 3 After a brief pursuit at speeds of about thirty-five miles per hour, the car stopped. Dixon got out and began yelling commands to McDonald. Although Dixon could see McDonald's driver-side front window was down, McDonald did not respond to or comply with the commands.
¶ 4 An aerial video of the incident, taken from a law enforcement airplane using heat imaging technology and later admitted into evidence, begins around this point. A few minutes into the stop, Deputy Klein, a K–9 handler, arrived with his dog and took over the job of issuing commands to McDonald, including something to the effect of "canine, talk to me now or I will send my dog." At one point, McDonald looked over toward where Klein and the K–9 were standing. Then McDonald rolled up his window and drove away, continuing along the same road.
¶ 5 Another deputy, who was farther north along the road, deployed road spikes. McDonald ran over the spikes, which punctured three of his tires. Nevertheless, the pursuit continued at speeds of thirty-five to forty miles per hour. Over the radio, Klein said, "If the vehicle stops, dog will be deployed if he goes mobile."
¶ 6 McDonald came to a stop just south of a major intersection. His car hopped the curb as it stopped. To the right of his car there was a small desert area and a residential area beyond that. About seven marked squad cars, with their emergency lights activated, fanned out behind and to the left of his car, and about nine uniformed deputies were on-scene. The deputies considered this a high-risk stop, so they did not approach the car. Klein got out with his K–9 but remained behind his squad car, yelling more commands from there. Other deputies had their guns drawn.
¶ 7 Shortly after he stopped, McDonald got out. Klein warned McDonald to "stop or you will be bitten." The video recording admitted at trial shows McDonald walking slowly toward the rear of his car, reaching out and putting his hand on the trunk of the car as if to steady himself. He continued walking around the trunk of his car and then back up along the passenger side, stopping about halfway up the passenger side. As he slowly brought his hands up to rest them on top of the car, Klein released the K–9, which ran over and bit McDonald's leg and dragged him around on the ground. The K–9 held the bite for thirty-eight seconds, causing serious injuries and permanent disfigurement.
¶ 8 Subsequent investigation revealed that McDonald has Type 1 diabetes
and at the time of the incident his blood sugar level had been dangerously low. When the deputies arrested him, they found glucose tabs in his sock. They also discovered he had a gun in an ankle holster. None of the deputies had been aware that McDonald was armed before Klein released the K–9. There were no bulges in his clothing to suggest that he might have had a gun, nor did McDonald reach for the gun at any point during the incident.
¶ 9 McDonald sued the Pima County Sheriff2 and Klein, alleging negligence. The trial court denied defendants' motion for summary judgment, holding that A.R.S. § 11–1025 did not bar the action, and that McDonald could proceed under a negligence theory even though Klein had intentionally released the K–9. The court also denied defendants' motion in limine to preclude testimony about Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
¶ 10 The case proceeded to a jury trial.3 The court rejected defendants' request for an instruction allocating the burden of proving lack of justification to McDonald, and instead instructed the jury that defendants had the burden of proving justification. The jury returned a verdict of $650,000, attributing ninety-five percent of the fault to defendants and five percent to McDonald. After the court denied defendants' motions for new trial or for judgment as a matter of law, they timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12–120.21 and 12–2101(A)(1).
¶ 11 Appellants first argue that because there was no dispute that Klein intentionally released the K–9 in order to apprehend McDonald, the trial court erred by denying their motion for summary judgment as to negligence.4 They maintain there is no cause of action against a law enforcement officer in Arizona for negligent use of force, and McDonald should have been required to bring this case under an intentional tort such as battery rather than as a negligence action.
¶ 12 Under Arizona law, a battery occurs where a person "intentionally engages in an act that results in a harmful or offensive contact with the person of another." Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, ¶ 9, 70 P.3d 435, 438 (2003), citing Restatement (Second) of Torts §§ 13, 18 (1965) ; see also Chappell v. Wenholz, 226 Ariz. 309, ¶ 10, 247 P.3d 192, 195 (App. 2011) (). In contrast, negligence occurs where the defendant has breached a duty to conform to a certain standard of care and the defendant's conduct is causally connected to the plaintiff's actual damages. See Gipson v. Kasey, 214 Ariz. 141, ¶ 9, 150 P.3d 228, 230 (2007).
¶ 13 We begin with the proposition that, in bringing suit, it is the plaintiff's prerogative to identify particular harms a defendant has caused and the plaintiff is free to connect those harms to particular theories of liability as he or she sees fit. Quite often, that decision will have significant substantive ramifications. See, e.g., Shetter v. Rochelle, 2 Ariz.App. 358, 366–67, 409 P.2d 74, 82–83 (1965) (). It is also well established that a single incident or course of conduct may give rise to multiple possible theories of liability. See, e.g., Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474, ¶¶ 59–61, 38 P.3d 12, 28–29 (2002) ().
¶ 14 Appellants cite no Arizona authority barring McDonald from styling this case as a negligence action rather than a battery action, and we are aware of none. Arizona case law on the issue is admittedly limited, but in two similar cases, negligence-based claims have at least been raised. In Mulhern v. City of Scottsdale, plaintiffs pursued a wrongful-death claim against the city based on the alleged negligence of an on-duty police officer who had intentionally shot and killed their family member. 165 Ariz. 395, 396–97, 799 P.2d 15, 16–17 (App. 1990). Their theory was that the officer had "acted negligently in using deadly force." Id. at 398, 799 P.2d at 18. This wrongful-death claim was allowed to proceed all the way to a jury verdict. Id. at 396, 799 P.2d at 16. Weekly v. City of Mesa, 181 Ariz. 159, 888 P.2d 1346 (App. 1994), is also somewhat instructive. In that case, Weekly refused to submit to an arrest, and then a K–9 officer "directed the dog to attack" him. Id. at 162, 888 P.2d at 1349. Weekly sued the city and alleged, among other claims, "negligent use of excessive force." Id. at 161–62 & n.2, 888 P.2d at 1348–49 & n.2. Although no issues related to that claim were before this court on appeal, neither did our opinion suggest there was any legal barrier to a cause of action grounded in negligence principles, even though the officer intended to release the K–9 for the purpose of attacking Weekly. See id.
¶ 15 While we acknowledge their limitations, Mulhern, and to a lesser extent, Weekly, are nevertheless consistent with the proposition that a plaintiff may bring an action sounding in negligence against an appropriate public entity where a law enforcement officer's process of evaluating whether to use force or how much force to use fell below the standard...
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Ryan v. Napier
...bore the burden of proving justification under § 13-409.¶11 The court of appeals affirmed in a split decision. Ryan v. Napier , 243 Ariz. 277, 406 P.3d 330 (App. 2017). It declined to "decide whether Arizona law recognizes a separate tort of negligent use of excessive force." Id. at 282 ¶ 1......