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Borunda v. Rico

Court of Appeals of Arizona, First Division

December 5, 2013

FELIX ABEL BORUNDA and MARTHA DOLORES BELTRAN, Plaintiffs/Appellants,
v.
EVERARDO FLANDES RICO, Defendant/Appellee.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2010-019991 The Honorable George H. Foster, Judge

Law Office of Jimmy Borunda, Phoenix By Jimmy Borunda Counsel for Plaintiffs/Appellants.

Thomas Thomas & Markson PC, Phoenix By Neal B. Thomas and Brian D. Rubin Counsel for Defendant/Appellee.

Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined.

MEMORANDUM DECISION

KESSLER, Judge

¶1 Plaintiffs/Appellants Felix Abel Borunda and Martha Dolores Beltran appeal from the superior court's decision granting two partial summary judgments in favor of Defendant/Appellee Everardo Flandes Rico. Appellants argue that the court wrongly found that Rico, who had negligently driven his vehicle into their home, was not liable to them for negligent infliction of emotional distress or for loss of consortium between themselves and Beltran's children. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 At approximately 11:00 p.m. on June 21, 2008, Rico drove his vehicle into the home of Borunda and Beltran, who were married at the time. Also in the home were Beltran's two minor children, Rene and Martha Sophia, and one of Martha Sophia's friends.

¶3 Rene, age eleven, was seated at his desk in his room when he heard a noise, the vehicle came through the wall into his room towards him and struck the desk he was seated behind. Broken wood scratched his legs and his face, drawing blood. The vehicle stopped partially in his room and partially in his sister's room. He picked up debris that had fallen on him and tried to open his sister's door but could not.

¶4 Martha Sofia, fourteen years old, was in her room with her friend watching television when she heard a noise and realized that a car was in her room. Neither child was hit by the vehicle or struck by any furniture or debris. She could not see much because dust was everywhere. The furniture had been pushed against the door, so they could not open it.

¶5 Borunda and Beltran were in a room that was not struck by the vehicle, and they did not see the vehicle strike the house. Borunda heard a bang. Beltran was asleep and did not realize a vehicle had struck the house until after the impact, when she heard her son screaming. Eventually, they were able to open the door to Martha Sofia's room to let the girls out.

¶6 Paramedics examined Rene at the scene and bandaged the wounds on his legs. Rene did not require stitches, and he did not go to the hospital.

¶7 Rene had pain in his foot and his head; he saw a doctor about ten days after the accident, and the pain resolved. Rene had nightmares and difficulty sleeping for several weeks, became easy to anger, and was frequently afraid. He saw a psychologist four or five times while he was in the sixth grade, after which his nightmares stopped. Rene was left with small, barely visible and fading marks on his legs.

¶8 Martha Sofia did not see a medical doctor after the accident, but her parents took her once to see a psychologist. She worried that another car would strike the house, but had no trouble sleeping. She ...


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