Wertheim v. Pima County

• Decision Date: 31 August 2005
• Docket Number: No. 2 CA-CV 2004-0109.,2 CA-CV 2004-0109.
• Citation: 211 Ariz. 422,122 P.3d 1
• Parties: Sarah WERTHEIM, in her individual capacity, and as Personal Representative of the Estate of Carter Wertheim, Plaintiff/Appellant, v. PIMA COUNTY; Clarence W. Dupnik, Pima County Sheriff; Tucson Police Department; and the City of Tucson, Defendants/Appellees.
• Court: Arizona Supreme Court

Page 1

122 P.3d 1

211 Ariz. 422

Sarah WERTHEIM, in her individual capacity, and as Personal Representative of the Estate of Carter Wertheim, Plaintiff/Appellant, v. PIMA COUNTY; Clarence W. Dupnik, Pima County Sheriff; Tucson Police Department; and the City of Tucson, Defendants/Appellees.

No. 2 CA-CV 2004-0109.

Court of Appeals of Arizona, Division 2, Department B.

August 31, 2005.

Law Office of Richard D. Grand, By Richard D. Grand, Law Office of Michael Meehan, By Michael J. Meehan, Tucson, for Plaintiff/Appellant.

Barbara LaWall, Pima County Attorney, By Thomas E. Dugal, Tucson, for Defendants/Appellees Pima County and Dupnik.

Mesch, Clark & Rothschild, P.C., By Richard Davis and Jeanette M. Boulet, Tucson, for Defendant/Appellee City of Tucson.

OPINION

FLÓREZ, Presiding Judge.

¶ 1 Sarah Wertheim, the widow of Carter Wertheim and the personal representative of his estate, brought this wrongful death action against Pima County and Pima County Sheriff Clarence Dupnik (collectively, the County) and the City of Tucson. The trial court granted defendants' motion for judgment as a matter of law following Wertheim's presentation of evidence at trial. She appeals. We review the court's ruling de novo to determine whether the evidence and reasonable inferences therefrom, viewed in the light most favorable to Wertheim, demonstrate that no material issues of fact existed and that the County and the City were entitled to judgment as a matter of law. See Crackel v. Allstate Ins. Co., 208 Ariz. 252, 92 P.3d 882 (App.2004). We affirm.

¶ 2 Wertheim presented the following evidence. On July 29, 2001, Kenneth Dillard shot and killed Carter Wertheim at the home of Dillard's estranged wife, Shari Dillard, and then killed himself. Kenneth Dillard was a Tucson Police Department (TPD) detective assigned to the Metropolitan Area Narcotics Trafficking Interdiction Squad (MANTIS) and was supervised by both TPD and the Pima County Sheriff's Department (PCSD). Dillard's immediate supervisor was TPD Sergeant Robert Martin. In the MANTIS chain of command, Martin reported to PCSD Lieutenant Ron Benson, and Benson reported to MANTIS commander and TPD Captain Robert Shoun. Dillard was not on duty at the time of the shooting, but he shot Carter with a gun he used as his primary on-duty weapon. The gun was not a TPD-issued weapon but was Dillard's personal property that he had purchased and that TPD had approved for Dillard to use on duty.

¶ 3 On May 27, 2001, approximately two months before the shooting, Dillard had entered the Wertheims' residence in the middle of the night and had found his wife and Carter asleep in bed together. Dillard confronted the two. He yelled and screamed at the couple and then struck himself violently over the head with a large, heavy flashlight, causing himself serious injury. After PCSD responded to Shari's 911 call, Dillard was taken to a hospital for emergency medical treatment and then was voluntarily admitted to a psychiatric hospital.

¶ 4 PCSD reported the incident to TPD, and TPD ordered Dillard to undergo a fitness-for-duty evaluation. When Dillard was released from the psychiatric hospital, TPD granted him leave from work, and he spent approximately four weeks with family members out of state. When he returned, TPD placed Dillard on limited duty pending the outcome of the evaluation. No criminal charges were pursued against Dillard as a result of the May 27 incident.

¶ 5 On July 13, 2001, Shari was granted an order of protection against Dillard. On the same day, Carter was granted an injunction from harassment by Dillard. The order of protection, if served, would have required Dillard to "not possess, receive and/or purchase firearms." The injunction was served on Dillard; the order of protection was not.

¶ 6 On Sunday, July 15, Shari contacted Lieutenant Benson and asked for his "assistance in serving" the order of protection. She also apparently told Benson that Dillard had been stalking her.¹ Benson did not question Shari about the details of the order and did not request or obtain a copy of it, but he told her that he "would help her to the extent [he] could." Benson then contacted Sergeant Martin and asked if TPD procedures required Dillard to "stay at one place" until the process server arrived or if TPD was obligated to assist Shari in having the order served on Dillard. Martin told Benson no such policy or obligation existed, and Benson did nothing else about the order.

¶ 7 After the May 27 incident, PCSD had given Dillard's gun to TPD along with other items deputies had collected from Dillard's MANTIS vehicle that night. Dillard's gun remained in TPD's possession until sometime during the week of July 16 through 20 when Sergeant Martin returned it to Dillard at his request. Dillard told Martin he needed the gun because, although he was assigned to desk duty, he was driving to and from work daily in his MANTIS vehicle. Martin explained to the jury that police officers are required to be armed while on duty and are "required to intervene" if they observe a felony being committed or some other "incident." Martin conferred with Lieutenant Benson and Captain Shoun about returning Dillard's gun; neither voiced an objection. Martin returned the gun even though the fitness-for-duty evaluation had not been completed and even though the psychologist who was to conduct the evaluation told the TPD psychologist on July 18 that Dillard should not be given his weapon until the evaluation was completed. As noted above, Dillard used the gun to kill Carter and himself on July 29.

¶ 8 Wertheim asserts that the trial court erred in granting the motion for judgment as a matter of law, arguing the jury could reasonably have concluded, based on these facts and reasonable inferences therefrom, that the City and the County had negligently investigated the circumstances that had triggered TPD's decision to conduct the fitness-for-duty evaluation and the facts underlying Shari's order of protection; that Dillard's supervisors had failed to recognize and/or pursue Dillard's criminal conduct and the domestic violence issues Wertheim asserts should have been apparent in the situation; and that, therefore, they had failed to comprehend the risk Dillard had posed to Carter and had negligently returned Dillard's gun to him. Wertheim further asserts that TPD's negligence in returning Dillard's gun to him was a proximate cause of Carter's death.

¶ 9 "The basic elements of actionable negligence are a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach." Ballesteros v. State, 161 Ariz. 625, 627, 780 P.2d 458, 460 (App.1989). The trial court granted judgment as a matter of law on the element of causation. It concluded that, "at best, the probabilities [that the defendants had or had not caused Carter's death] are evenly balanced." Thus, although the court recognized that causation is generally a question of fact, it concluded a reasonable jury could not have found causation here by a preponderance of the evidence.

¶ 10 We may affirm a trial court's ruling if it is correct for any reason. Glaze v. Marcus, 151 Ariz. 538, 729 P.2d 342 (App.1986). We need not reach the issue of causation, because we conclude that the County and City owed no duty to Carter. "Whether a legal duty exists is a question of law that we review de novo." Clark v. New Magma Irrigation & Drainage Dist., 208 Ariz. 246, ¶ 8, 92 P.3d 876, 878 (App.2004).

The question of duty ... is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff. If the answer is no, the defendant is not liable even though he may have acted negligently in light of the foreseeable risks.

Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985).

¶ 11 Put in the context of the relationships here, the question is whether an employer (the City and/or the County) owed a duty to a third person (Carter) injured by the conduct of its off-duty employee (Dillard). Arizona has adopted and follows the Restatement (Second) of Torts § 315 (1965) and its related sections.

In Arizona, there is no duty to control the conduct of a third party unless "'(a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person's conduct, or (b) a special relation exists between the [defendant] and the [plaintiff] which gives to the [plaintiff] a right of protection."' Martinez v. Woodmar IV Condominiums Homeowners Ass'n, 189 Ariz. 206, 207-08, 941 P.2d 218, 219-20 (1997), quoting Martinez v. Woodmar IV Condominiums Ass'n, 187 Ariz. 408, 409, 930 P.2d 485, 486 (App.1996), quoting Restatement (Second) of Torts § 315 (1965) (brackets added by supreme court); Fedie v. Travelodge Int'l, Inc., 162 Ariz. 263, 265, 782 P.2d 739, 741 (App.1989). Therefore, a duty to control the conduct of a third party arises only when a special relationship exists between the defendant and the third party, such as "parent-child, master-servant, possessor of land-licensee, or guardian-ward." Fedie, 162 Ariz. at 265, 782 P.2d at 741; see also Restatement (Second) of Torts §§ 316-319. And a duty to protect arises only where there is a special relationship between the defendant and the victim, "such as carrier-passenger, innkeeper-guest, landlord-invitee, guardian-ward, teacher-student, or jailer-prisoner." Fedie, 162 Ariz. at 265, 782 P.2d at 741; see also Restatement (Second) of Torts §§ 314A, 320; Martinez.

Bloxham v. Glock Inc., 203 Ariz. 271, ¶ 7, 53 P.3d 196, 199 (App.2002); see also Collette v. Tolleson Unified Sch. Dist. No. 214, 203 Ariz. 359, 54 P.3d 828 (App.2002); Tamsen v. Weber, 166 Ariz. 364, 802 P.2d 1063 (App.1990); Cooke v. Berlin, 153 Ariz. 220, 735 P.2d 830 (App.1987), disapproved on other grounds, Dunn v. Carruth, 162 Ariz. 478, 784 P.2d 684 (1989); Davis v. Mangelsdorf...