Torts: Viability of Negligence Claim vs Intentional Act

Ryan v. Napier, __Ariz. Adv. Rep. __ No. CV-17-0325-PR (August 23, 2018) (J. Timmer)

CARELESS DECISION MAKING RESULTING IN INTENTIONAL ACT IS AN INTENTIONAL TORT AND NOT AN ACTIONABLE NEGLIGENCE CLAIM/NEGLIGENCE VS BATTERY

Plaintiff McDonald swerved his car into opposing traffic nearly hitting a car driven by a Pima County Sheriff deputy. A stop and go pursuit followed involving several deputies and traffic spikes. Plaintiff ultimately stopped his car, got out and staggered around to the passenger side of the car.  Among the deputies at the scene was officer Klein who had a police dog named Barry trained to “bite and hold” on command. This deputy warned plaintiff “stop or you will be bitten.” The plaintiff put his hands on the roof of the car. The police dog was intentionally released by the deputy and bit and seriously injured plaintiff. It was later determined the plaintiff was experiencing an extreme hypoglycemic event causing him to lack cognitive function to understand what was happening or to respond to the deputy's commands. No criminal charges were brought.

 Plaintiff sued the canine officer and sheriff's department alleging the dog was “negligently released” and the police used “excessive force.” Notably plaintiff did not assert claims of battery or deprivation of rights under § 1983. Defendant's motion for summary judgment arguing the intentional use of force could not constitute negligence was denied. The case was tried on the issue of whether the deputy acted negligently in releasing the dog and if so was he legally justified in so doing pursuant to A.R.S. § 13-409. Plaintiff's expert was permitted to testify that the legal standard for determining whether the officer was legally justified in releasing the dog was delineated in Graham v. Connor, 490 U.S. 386 (1989), which sets forth factors pertinent to 42 U.S.C. § 1983 excessive force cases in the context of the Fourth Amendment. The trial court also instructed the jury that the burden of proving the release of the dog was justified fell on the defendants. 

 The jury found for the plaintiff awarding $617,500 and assessing 5% fault on the plaintiff. Defendants' motion for new trial was denied and they appealed. The Arizona Court of Appeals affirmed finding the plaintiff could recover under a negligence claim for the officer's “evaluation of whether to intentionally release” the dog. The Arizona Supreme Court vacated the court of appeals decision, reversed and remanded.

 Here, Klein's “act,” and the sole cause of McDonald's injuries, was Klein's intentional release of Barry to bite and hold McDonald. (“Thus, if the actor, having pointed a pistol at another, pulls the trigger, the act is the pulling of the trigger.”). As previously explained, an intentional act cannot also constitute negligence. In short, Klein's internal evaluation of whether to release Barry and his decision to do so was part and parcel of his intent to inflict harmful or offensive contact on McDonald. . . We are further persuaded because permitting negligence liability to rest on an officer's internal evaluation of the need for intentionally inflicted force could permit plaintiffs to “plead around” statutory provisions that apply only to intentional tort claims.

 For example, the sheriff is immune from liability for damages caused by an employee's felonious acts. A.R.S. § 12-820.05(B) and would not be required to indemnify an employee if the harm was caused by the commission of a felony. So that if Klein's release of the dog was found to be unjustified and to be an aggravated assault, see A.R.S. §§ 13-1203(A), -1204(A), the sheriff would be immune from liability, unless he knew that Klein had a propensity to act as he did, and would not be required to indemnify Klein.

 Likewise, “statutory presumptions are triggered when a law enforcement officer intentionally uses physical force to arrest or capture a suspect and the suspect is injured. The officer is ‘presumed to [have been] acting reasonably' in using physical force. A.R.S. § 12-716(A)(1). And the officer's employer is ‘presumed to have reasonably hired and trained' its officers to use that physical force. Id. § 12-716(A)(2).”

 To be clear, plaintiffs may plead a negligence claim for conduct that is independent of the intentional use of force or plead negligence and battery as alternate theories if the evidence supports each theory. For example, if the evidence here also supported a finding that Klein unintentionally dropped [the dog's] leash, resulting in the attack against McDonald, [or carelessly waited too long to order Barry to release] a negligence claim would have been appropriate.

 Here the only viable claim under the facts presented was an intentional battery.

 A.R.S. § 13-409 provides the defense of justification to excessive force cases where it is reasonable to believe the force is immediately necessary to effect an arrest, detention or prevent escape, it can reasonably be made known to the subject the purpose of the arrest and a reasonable person would believe the arrest or detention to be lawful.  This defense does not apply to negligence actions essentially because it is redundant to the underlying determination of whether or not the officer acted reasonably or breached the standard of care. It would apply where a claim of battery is made. Defendants would have the burden to prove the defense where it is applicable.

 Finally, it was error here to allow an expert to testify that the legal standard for determining whether the officer's actions were justified are those factors announced by the United States Supreme Court in Graham. It is for the trial court to instruct the jury on the law not an expert witness. Ariz. Const. art. VI, § 27. If reasonably relied upon by the expert, the expert could state what the factors are and that police officers are trained based upon these factors. Ariz. R. Evid. 703. But citing the case, the fact it was a decision by the Supreme Court or otherwise that it is the law to apply to the case is improper.