United States District Court, D. Arizona
C. BURY JUDGE
matter was referred to the United States Magistrate Judge
pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules
of practice of this Court for pretrial management, hearing
and a Report and Recommendation (R&R) (Doc. 101) on the
Defendant's Motion for Summary Judgment (Doc. 85). Before
the Court is the Magistrate Judge's Report and
Recommendation, Plaintiff's Objection (Doc. 103), and
Defendant's Response to Objection (Doc. 104). The
Magistrate Judge recommends to the Court that the Motion for
Summary Judgment may be granted in part and denied in part.
On August 3, 2017, the Court heard oral arguments and took
the matter under advisement. The Court now rules.
objection is made to the findings and recommendation of a
magistrate judge, the district court must conduct a de novo
review. United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
seeks clarification of what duties the Court finds were owed
by the Defendant, and if the Court found there was a duty to
perform a Department of Transportation (DOT) inspection,
Defendant objects to that finding. Defendant also objects to
the Magistrate's finding that there is sufficient
evidence to deny summary judgment based on the alleged
failure to grease the joint. After conducting a de nevo
review of the record, this Court agrees with the R&R and
will leave any evidentiary issues to resolution by motions in
limine or at trial.
a matter of law for the Court to determine. An affirmative
duty to act may arise from undertaking to perform a service
or from public policy. A duty that arises from a contractual
relationship does not extend beyond the scope of what was
assumed in the contract. Diaz v. Phoenix Lubrication
Service, Inc., 224 Ariz. 335, 340 (2010). As such, a
duty cannot arise from expectations or normal practices of
only one party. A potential duty that arises from public
policy is limited to using reasonable care in actions that
create risk themselves. Id. at 340. Here, the
Defendant assumed a duty to use reasonable care in the
services it undertook to perform. What, specifically, the
Defendant undertook to perform for the Plaintiff is a
question of fact for the fact finder.
has shown an issue of fact regarding whether Defendant
undertook to perform a DOT inspection. TTM's director of
maintenance, Michael Poole, testified that he discussed the
services to be performed with Speedco on July 1, 2013 and it
was his understanding that they had agreed to do a DOT
inspection. (Doc. 86-2 at 135.) Defendant does not dispute
that it did not perform a DOT inspection. (Doc. 103 at 4.)
Additionally, Plaintiff's expert, Dr. Bosch, testified
that there was damage to the zerk valve on the ball joint at
the time of Speedco's service. (Doc. 86-2 at 74.) And a
former Speedco employee, Ms. Mason, testified that not
reporting such damage would be unreasonable and reckless.
(Doc. 90-2 at 7.) Evidence that the joint was dry at the time
of the accident may suggest that Speedco failed to grease the
joint. (Doc. 86-2 at 6.) Resolution of any evidentiary
issues, which is the crux of this objection, will be resolved
prior to or during trial, specifically with reference to any
dispute over expert findings.
Arizona law, causation in a negligence claim exists if
"the defendant's act helped cause the final result
and if that result would not have happened without the
defendant's act." Ontiveros v. Borak, 136
Ariz. 500, 505 (1983). Therefore, in order to show causation
in a negligence claim, the plaintiff must show both that (1)
the breach contrib uted to the final result, even if only by
a little, and (2) that the final result would not have
happened but for the defendant's breach. Terranova v.
Southern Pacific Traspon. Co., 158 Ariz. 125, 129
Court finds sufficient evidence to put to a jury to resolve.
The Plaintiff has produced evidence to show an issue of fact
regarding causation from the alleged failure to report damage
to the zerk valve and alleged failure to perform a DOT
inspection. Plaintiff has presented testimony that damage to
the valve would have been reported (Doc. 90-2 at 11), that
the joint would have been replaced had the damage been noted,
(Doc. 90-1 at 35) and that a new joint would have prevented
the Yeager's injuries. (Doc. 90-1 at 35). Additionally,
Defendant agrees that a DOT inspection would have identified
the deterioration in the joint. (Doc. 103 at 4.) The motion
for summary judgment will be denied and the R&R will be
adopted on this issue. Nothing contained in this Order will
be treated as the law of the case.
The R&R recommends granting summary judgment as to the
claim for punitive damages. Neither party has objected to
this finding. The Recommendation will be adopted as to
punitive damages and summary judgment on the issue will be
after conducting a de novo review of the record, IT
IS ORDERED that the Court ADOPTS
the Report and Recommendation (Doc. 101) to
GRANT the motion for summary judgment (Doc.
85) on the ...