Torres v. Kennecott Copper Corp.
| Decision Date | 13 September 1971 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 488 P.2d 477,15 Ariz.App. 272 |
| Parties | Arthur TORRES and Josie Torres, his wife, Appellants, v. KENNECOTT COPPER CORPORATION, a New York corporation, Appellee. 1485. |
| Court | Arizona Court of Appeals |
Finn & Van Baalen, by Peter T. Van Baalen, Phoenix, for appellants.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Richard J. Woods and Ralph E. Mahowald, Jr., Phoenix, for appellee.
On this appeal from a summary judgment in favor of defendant-appellee Kennecott Copper Corporation, plaintiffs-appellants Torres seek to challenge the trial court's conclusion that it lacked jurisdiction to entertain plaintiffs' suit for damages against Kennecott. The trial court held that plaintiffs' exclusive remedy was under the Workmen's Compensation Act. Kennecott has filed a motion to dismiss the appeal contending that the appeal has become moot by reason of the dismissal with prejudice of plaintiffs' action against Kennecott's employee, on whose alleged negligence Kennecott contends its liability can only be predicated. Appellee's motion to dismiss was heard simultaneously with oral argument on the merits of the appeal.
First, we note that filing a motion to dismiss an appeal under Rule 7, Rules of the Supreme Court, 17 A.R.S., is the proper procedure for presenting the issue of mootness, and that an appeal can be dismissed when the issues on appeal have become moot. In re Estate of Henry, 6 Ariz.App. 183, 430 P.2d 937 (1967).
After reviewing the matter, we agree with defendant Kennecott that plaintiffs' appeal should be dismissed as moot.
The relevant facts are undisputed and as pertinent hereto are as follows. On July 24, 1968, plaintiff Arthur Torres sustained an industrial injury while in the employ of Kennecott Copper Corporation when he lost control of the truck he was driving. Thereafter, Torres was admitted to Kearney Hospital, which is solely owned and operated by Kennecott. There he was treated for his injuries by Dr. Norbert A. Ehrman, a doctor on the hospital staff, and other hospital personnel. While receiving this treatment plaintiff contends his injuries were aggravated and that he received additional injuries due to Dr. Ehrman's negligence and the negligence of other hospital personnel, designated in plaintiffs' complaint as John Does and Jane Does I through V.
Torres filed a claim for compensation with the Industrial Commission, and thereafter accepted compensation. On January 26, 1970, the Commission entered its Findings and Award for Continuing Benefits and Establishing Average Monthly Wage. Subsequently, Torres filed a Petition for Hearing dated February 11, 1970, claiming continuing disability arising from the truck mishap and seeking compensation at a greater rate than he was then receiving.
On January 12, 1970, Torres filed the present civil action for damages against Dr. Ehrman, the above-mentioned John Does and Kennecott. Count I of the complaint alleged negligence on the part of Dr. Ehrman, the John Does, and alleged Kennecott's derivative liability as their employer, under the doctrine of Respondeat superior. Count II alleged as a separate theory of liability that Kennecott 'was negligent in that it failed to use due care in the selection of its agents and employees, and was negligent in choosing a medical staff not possessing the degree of knowledge and skill ordinarily exercised or possessed by others in the same profession.'
In due course Kennecott filed a motion for summary judgment and the trial court granted the motion on the basis that plaintiffs' exclusive remedy was under the provisions of the Workmen's Compensation Act. The plaintiffs then filed their appeal.
Thereafter plaintiffs dismissed with prejudice their claim against the defendant employee, Dr. Ehrman. Kennecott then filed its motion to dismiss this appeal. In the response to the motion to dismiss and in oral argument plaintiffs stated that they did not contend that any other employees or agents of Kennecott were negligent and further, that plaintiffs did not intend to amend their complaint so as to substitute other actual defendants for the fictional defendants originally named. Also, plaintiffs admit that their claim against Dr. Ehrman has been dismissed with prejudice.
As previously stated herein Kennecott's liability under Count I of the complaint was predicated upon the principles of Respondeat superior. It is well established that where the master's liability is based solely on the negligent acts of his servant, a judgment in...
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Haralson v. Fisher Surveying, Inc.
...at 312, 732 P.2d at 203; see also Ford v. Revlon, Inc., 153 Ariz. 38, 42, 734 P.2d 580, 584 (1987); Torres v. Kennecott Copper Corp., 15 Ariz.App. 272, 274-75, 488 P.2d 477, 479-80 (1971). There is, however, no allegation of independent misconduct by Fisher Surveying in this case. Therefore......
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...liable without a showing of independent negligence where the individual officers are found not liable. See Torres v. Kennecott Copper Corp., 488 P.2d 477, 479 (Ariz. Ct. App. 1971). IV. CONCLUSION Accordingly, IT IS ORDERED DENYING Plaintiff's Motion for Partial Summary Judgment, (Doc. 121)......
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