Smyser v. City of Peoria, No. 1 CA-CV 05-0202.

CourtCourt of Appeals of Arizona
Writing for the CourtThompson
Citation215 Ariz. 428,160 P.3d 1186
Decision Date12 June 2007
Docket NumberNo. 1 CA-CV 05-0202.
PartiesCatherine SMYSER, surviving spouse of Aaron Smyser, deceased, on behalf of herself and Jamie Smyser and Michael Smyser, minor children of decedent; Carole Smyser and Rex Smyser, surviving parents of decedent, Plaintiffs-Appellants, v. CITY OF PEORIA, a public entity, Defendant-Appellee.
160 P.3d 1186
215 Ariz. 428
Catherine SMYSER, surviving spouse of Aaron Smyser, deceased, on behalf of herself and Jamie Smyser and Michael Smyser, minor children of decedent; Carole Smyser and Rex Smyser, surviving parents of decedent, Plaintiffs-Appellants,
v.
CITY OF PEORIA, a public entity, Defendant-Appellee.
No. 1 CA-CV 05-0202.
Court of Appeals of Arizona, Division 1, Department T.
June 12, 2007.

[160 P.3d 1189]

Palumbo Wolfe Sahlman & Palumbo PC by Anthony J. Palumbo, Scott I. Palumbo, Harris, Powers & Cunningham by Tonya K. MacBeth, Phoenix, Attorneys for Plaintiffs-Appellants.

Ridenour Hienton Kelhoffer Lewis & Garth PLLC by Robert R. Beltz, Thomas S. Zia, Phoenix, Attorneys for Defendant-Appellee.

Devlin Law Firm PC by Lisa M. Sommer Devlin, Phoenix, Attorneys for Amicus Curiae Southwest Ambulance.

Sanders & Parks PC by David J. Damron, Phoenix, Attorneys for Amicus Curiae City of Phoenix.

THOMPSON, Judge.


¶ 1 Catherine Smyser, individually and on behalf of her children and the parents of her late husband, Aaron Smyser, appeals from a jury verdict in favor of the City of Peoria (the City) in her medical malpractice and wrongful death suit. Catherine argues that the superior court erred in finding that (1) Arizona Revised Statutes (A.R.S.) § 9-500.02(A) (Supp.2005) is a constitutionally permissible grant of qualified immunity to the City for its provision of emergency medical services, (2) provision of such services is a governmental function, (3) the statute does not abrogate a cause of action for simple negligence in violation of the Arizona Constitution, (4) Catherine was not entitled to a spoliation of evidence instruction, and (5) the City could ask witnesses if the City's paramedics and emergency medical technicians (EMTs) had used their best efforts. Catherine also asserts that the trial court erred in awarding a monetary sanction to the City based on a pre-trial offer of judgment. For the following reasons, we affirm the judgment in part but vacate the award of sanctions and remand for entry of an amended judgment in the City's favor.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Catherine filed an action for medical malpractice and wrongful death against the City and Southwest Ambulance and Rescue, Inc.1 in November 2000. She alleged that the City's paramedics2 and EMTs who responded to Aaron's 911 call failed to properly treat his severe asthma attack. The paramedics rendered emergency medical care and transported Aaron to a hospital, but he died of anoxic brain damage a few days later.

¶ 3 The City moved for summary judgment and, relying on A.R.S. § 9-500.02(A),3 contended that no evidence established that its personnel were guilty of intentional misconduct or gross negligence in treating Aaron. Without such evidence, the City was entitled to the qualified immunity granted by the statute and could not be liable for Aaron's death. Section 9-500.02(A) provides in part:

A city or town or its officers and employees, a private fire or ambulance company whose services are procured by a city or town or its officers and employees . . . who performs emergency medical aid, when rendering emergency medical aid provided by an emergency medical technician, an intermediate emergency medical technician or a paramedic . . . is not liable for civil or other damages to the recipient of the emergency medical aid as the result of any act or omission in rendering such aid or as the result of any act or failure to act to provide or arrange for further medical treatment or care. . . . This subsection does not apply if the person providing emergency medical aid is guilty of gross negligence or intentional misconduct.

(Emphasis added). In its motion, the City argued that no reasonable jury could find

160 P.3d 1190

that it had acted with gross negligence in rendering emergency aid, and thus it was entitled to judgment as a matter of law.

¶ 4 Catherine's response and cross-motion for summary judgment alleged that the City was not entitled to immunity and, alternatively, that fact questions existed regarding whether the City and its employees were grossly negligent. She argued that (1) A.R.S. § 9-500.02(A) violates the anti-abrogation clause, Article 18, Section 6, of the Arizona Constitution; (2) providing emergency medical services was not a governmental function; (3) multiple acts of negligence could constitute gross negligence; and (4) causation was a question for the jury. In Catherine's cross-motion, assuming that A.R.S. § 9-500.02(A) was invalid or did not apply, she argued that the City should be liable for ordinary negligence.

¶ 5 The trial court found that questions of material fact existed as to whether the City was guilty of gross negligence and denied summary judgment on that issue. Later, the trial court concluded as a matter of law that A.R.S. § 9-500.02(A) is a permissible regulation and not an unlawful abrogation because no cause of action could have been brought against a city for simple negligence when the Arizona Constitution was adopted. Furthermore, the City's provision of emergency medical services was a governmental, rather than proprietary, function. The trial court accordingly denied Catherine's cross-motion. The case went to trial on the question of gross negligence, and the jury returned a verdict in the City's favor. Catherine timely appealed.

DISCUSSION

¶ 6 On appeal, we consider whether the trial court erred by (1) finding that the City is entitled to qualified immunity, (2) finding that the provision of emergency medical services is a governmental function, (3) finding that A.R.S. § 9-500.02 is constitutional, (4) refusing to give a spoliation of evidence instruction, (5) permitting the City to ask witnesses whether the EMTs and paramedics were "trying their best," and (6) enforcing the City's unapportioned offer of judgment.

A. Denial of Catherine's motion for summary judgment and finding that the City was entitled to a gross negligence defense

¶ 7 In reviewing the trial court's ruling on a motion for summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. See United Servs. Auto. Ass'n v. DeValencia, 190 Ariz. 436, 438, 949 P.2d 525, 527 (App.1997).

1. Application of the immunity clause

¶ 8 We review de novo questions of statutory interpretation and constitutional claims. See Badia v. City of Casa Grande, 195 Ariz. 349, 352, ¶ 11, 988 P.2d 134, 137 (App.1999) (citation omitted). Whether the City is immune from suit for negligence is not a factual question but a question of law for the court. See Galati v. Lake Havasu City, 186 Ariz. 131, 134, 920 P.2d 11, 14 (App.1996) (whether city was covered by statute granting immunity for exercise of a legislative function is a legal question).

¶ 9 Catherine first contends that, by its plain language, the immunity clause of our constitution does not apply to suits against a city and thus infers that the legislature was not authorized to adopt a statute granting even qualified immunity. The immunity clause states that "[t]he Legislature shall direct by law in what manner and in what courts suits may be brought against the State." Ariz. Const. art. 4, part 2, § 18. Catherine also asserts that statutes, such as A.R.S. § 9-500.02, that grant governmental immunity are to be construed narrowly rather than expansively. See Doe ex rel. Doe v. State, 200 Ariz. 174, 176, ¶ 4, 24 P.3d 1269, 1271 (2001) (agency has absolute immunity for fundamental governmental policy decisions but qualified immunity for specific decisions granting or denying licenses).

¶ 10 To support her contentions that the immunity clause does not apply to the City, that the City is not a functional equivalent of the State, and thus that the legislature could not adopt a statute conferring immunity on a city or town, Catherine cites Clouse ex rel. Clouse v. State, 199 Ariz. 196,

160 P.3d 1191

16 P.3d 757 (2001). The statute at issue in Clouse conferred immunity on public entities and employees for failing to retain an arrested person in custody unless the public entity or employee intended to cause injury or was grossly negligent. A.R.S. § 12-820.02(A)(1) (2005). The plaintiffs sued the State Department of Public Safety (DPS), a DPS deputy, and a county, and the defendants argued that they were immune from liability unless the plaintiffs could show gross negligence. Id. at 198, ¶ 5, 16 P.3d at 759. The plaintiffs argued that the anti-abrogation clause protected suits brought against the government from legislative interference and that, by eliminating a claim for simple negligence, the statute violated the anti-abrogation clause. Id.

¶ 11 Our supreme court held, however, that the anti-abrogation clause was more general than the immunity clause and that the latter "directly addresses the authority of the legislature in relation to actions against the state" and applied the immunity clause to resolve the case. Id. at 199, ¶ 11, 16 P.3d at 760. It noted that, after the supreme court abolished sovereign immunity in Stone v. Arizona Highway Commission, 93 Ariz. 384, 389, 381 P.2d 107, 109 (1963), a government was to be immune from suit only when necessary to avoid severely hindering a governmental function or thwarting an established public policy. Clouse, 199 Ariz. at 198-99, ¶ 9, ¶ 12, 16 P.3d at 759-60 (quoting Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982)). But after the supreme court in Ryan invited the legislature to aid in determining when public entities and employees would be liable, the legislature adopted a series of statutes, including the one at issue. Id. at 199, ¶ 13, 16 P.3d at 760; see generally A.R.S. §§ 12-820 to -826 (2005) (Actions Against Public Entities or Public Employees Act); City of Tucson v. Fahringer, 164 Ariz. 599, 600, 795 P.2d 819, 820 (1990).

¶ 12 The court also observed that, even after abolishing sovereign immunity, the court nevertheless...

To continue reading

Request your trial
53 practice notes
  • Noriega v. Town of Miami, No. 2 CA-CV 2017-0007
    • United States
    • Court of Appeals of Arizona
    • October 26, 2017
    ...City of Phoenix, 240 Ariz. 277, ¶ 8, 378 P.3d 720, 722 (App. 2016), a municipality's immunity for negligence, Smyser v. City of Peoria, 215 Ariz. 428, ¶ 8, 160 P.3d 1186, 1190 (App. 2007), and the existence of a duty of care, Vasquez v. State, 220 Ariz. 304, ¶ 22, 206 P.3d 753, 760 (App. 20......
  • Applewhite v. Accuhealth, Inc.
    • United States
    • New York Court of Appeals
    • June 25, 2013
    ...[2]; 2005 Ops St Comp No. 05–8; see also Wanzer, 580 A.2d at 131;Edwards, 237 Va. at 172, 375 S.E.2d at 750;Smyser v. City of Peoria, 215 Ariz. 428, 435–436, 160 P.3d 1186, 1193–1194 [Ct.App.2007]; McIver v. Smith, 134 N.C.App. at 587, 518 S.E.2d at 526). Moreover, and unlike the types of m......
  • Freeman v. Sorchych, No. 1 CA-CV 09-0720.
    • United States
    • Court of Appeals of Arizona
    • January 13, 2011
    ...of fees. See 245 P.3d 938Tilley v. Delci, 220 Ariz. 233, 239, ¶ 19, 204 P.3d 1082, 1088 (App.2009) (citing Smyser v. City of Peoria, 215 Ariz. 428, 442, ¶ 50, 160 P.3d 1186, 1200 (App.2007)); Country Mut. Ins. Co. v. Fonk, 198 Ariz. 167, 172, ¶ 25, 7 P.3d 973, 978 (App.2000) (denying a requ......
  • Applewhite v. Accuhealth, Inc.
    • United States
    • New York Court of Appeals
    • June 25, 2013
    ...[2]; 2005 Ops St Comp No. 05–8; see also Wanzer, 580 A.2d at 131;Edwards, 237 Va. at 172, 375 S.E.2d at 750;Smyser v. City of Peoria, 215 Ariz. 428, 435–436, 160 P.3d 1186, 1193–1194 [Ct.App.2007]; McIver v. Smith, 134 N.C.App. at 587, 518 S.E.2d at 526). Moreover, and unlike the types of m......
  • Request a trial to view additional results
53 cases
  • Noriega v. Town of Miami, No. 2 CA-CV 2017-0007
    • United States
    • Court of Appeals of Arizona
    • October 26, 2017
    ...City of Phoenix, 240 Ariz. 277, ¶ 8, 378 P.3d 720, 722 (App. 2016), a municipality's immunity for negligence, Smyser v. City of Peoria, 215 Ariz. 428, ¶ 8, 160 P.3d 1186, 1190 (App. 2007), and the existence of a duty of care, Vasquez v. State, 220 Ariz. 304, ¶ 22, 206 P.3d 753, 760 (App. 20......
  • Applewhite v. Accuhealth, Inc.
    • United States
    • New York Court of Appeals
    • June 25, 2013
    ...[2]; 2005 Ops St Comp No. 05–8; see also Wanzer, 580 A.2d at 131;Edwards, 237 Va. at 172, 375 S.E.2d at 750;Smyser v. City of Peoria, 215 Ariz. 428, 435–436, 160 P.3d 1186, 1193–1194 [Ct.App.2007]; McIver v. Smith, 134 N.C.App. at 587, 518 S.E.2d at 526). Moreover, and unlike the types of m......
  • Freeman v. Sorchych, No. 1 CA-CV 09-0720.
    • United States
    • Court of Appeals of Arizona
    • January 13, 2011
    ...of fees. See 245 P.3d 938Tilley v. Delci, 220 Ariz. 233, 239, ¶ 19, 204 P.3d 1082, 1088 (App.2009) (citing Smyser v. City of Peoria, 215 Ariz. 428, 442, ¶ 50, 160 P.3d 1186, 1200 (App.2007)); Country Mut. Ins. Co. v. Fonk, 198 Ariz. 167, 172, ¶ 25, 7 P.3d 973, 978 (App.2000) (denying a requ......
  • Applewhite v. Accuhealth, Inc.
    • United States
    • New York Court of Appeals
    • June 25, 2013
    ...[2]; 2005 Ops St Comp No. 05–8; see also Wanzer, 580 A.2d at 131;Edwards, 237 Va. at 172, 375 S.E.2d at 750;Smyser v. City of Peoria, 215 Ariz. 428, 435–436, 160 P.3d 1186, 1193–1194 [Ct.App.2007]; McIver v. Smith, 134 N.C.App. at 587, 518 S.E.2d at 526). Moreover, and unlike the types of m......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT