Court of Appeals of Arizona, First Division, Department B
Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County Cause No. CV2011-015644 The Honorable Katherine M. Cooper, Judge
Schenk Podolsky Mesa by Adam V. Schenk Jacob R. Podolsky Attorneys for Plaintiff/Appellant
Gary Verburg, Phoenix City Attorney Phoenix by Shannon M. Bell, Assistant City Attorney Robert A. Hyde, Assistant City Attorney Attorneys for Defendant/Appellee
MAURICE PORTLEY, Presiding Judge
¶1 Julie Angulo appeals the summary judgment entered in favor of the City of Phoenix ("City") . Because we find no error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Angulo was injured after being struck in a crosswalk by a City vehicle driven by Jeffrey Stirek. She filed a notice of claim against Stirek and the City, but only served the City. Subsequently, Angulo filed a complaint against Stirek for his negligence and alleged that the City was vicariously liable.
¶3 Stirek filed a motion to dismiss and a motion for summary judgment. Because she had not served him with the notice of claim or the summons and complaint, Angulo agreed to dismiss the complaint against him with prejudice. Ariz. Rev. Stat. ("A.R.S.") section 12-821.01 (West 2013) . After Stirek was dismissed, the City filed a successful motion for summary judgment asserting that Stirek's dismissal extinguished its potential vicarious liability pursuant to DeGraff v. Smith, 62 Ariz. 261, 157 P.2d 342 (1945).
¶4 Angulo argues that the superior court improperly granted summary judgment to the City. She contends that the procedural error which resulted in Stirek being dismissed with prejudice should not constitute an adjudication on the merits and bar the City's vicarious liability. Angulo specifically argues we should create an equity and public policy exception to DeGraff and its progeny.
¶5 We review the grant of summary judgment de novo, "viewing the evidence and reasonable inferences in the light most favorable to the party opposing the motion, " Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003), to determine "whether any genuine issues of material fact exist." Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55, ¶ 8, 156 P.3d 1157, 1160 (App. 2007) . There are, however, no genuine issues of material fact, and no legal basis to create an exception to DeGraff.
¶6 In DeGraff, our supreme court held that after an alleged negligent employee was dismissed from the lawsuit with prejudice the employer could not be vicariously liable for the employee's negligence. 62 Ariz. at 269-70, 157 P.2d at 344-45. The majority reasoned that the employer cannot be held liable for its employee's negligence because "[a] dismissal with prejudice is an adjudication on the merits of the case." Id. at 269, 157 P.2d at 344, 345 (internal quotation marks and citations omitted); see also Ford v. Revlon, Inc., 153 Ariz. 38, 42, 734 P.2d 580, 584 (1987) ("[W]hen the master's liability is based solely on the negligence of his servant, a judgment in favor of the servant is a judgment in favor of the master, " but "[w]hen the negligence of the master is independent of the negligence of the servant, the result may be different.") (citation omitted); Torres v. Kennecott Copper Corp., 15 Ariz.App. 272, 274, 488 P.2d 477, 479 (1971) (holding that an employee's dismissal with prejudice barred the plaintiff's vicarious liability claims against the employer where the employer's "liability [wa]s based solely on the negligent acts of his [employee]"). Additionally, the court held that a dismissal with prejudice constitutes an adjudication on the merits even when the dismissal is based on a mistaken belief that the plaintiffs "had the right to continue their action against [the employer] after dismissing" the employee. DeGraff, 62 Ariz. at 264, 157 P.2d at 343.
¶7 Most recently, in Law v. Verde Valley Medical Center, we "reject[ed] Plaintiff's argument that the principles from DeGraff are no longer applicable." 217 Ariz. 92, 96, ¶ 13, 170 P.3d 701, 705 (App. 2007). There, we held that "[w]hen a judgment on the merits — including a dismissal with prejudice — is entered in favor of the other person, " "there is no fault to impute and the party potentially vicariously liable . . . is not ...