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McDonald v. Napier

Court of Appeals of Arizona, Second Division

October 18, 2017

Brian McDonald, Plaintiff/Appellee,
Mark Napier, Pima County Sheriff; and Joseph Klein, Defendants/Appellants.

         Appeal from the Superior Court in Pima County No. C20142895 The Honorable Catherine M. Woods, Judge

          Dwyer Hernandez, P.C., Tucson By Amy Hernandez Counsel for Plaintiff/Appellee

          Barbara LaWall, Pima County Attorney By Nancy J. Davis, Deputy County Attorney, Tucson Counsel for Defendants/Appellants

          Chief Judge Eckerstrom authored the opinion of the Court, in which Judge Conlogue [1] concurred.


          ECKERSTROM, Chief Judge.

         ¶1 Pima County Sheriff Mark Napier and Deputy Joseph Klein appeal a jury verdict against them for injuries plaintiff Brian McDonald sustained when he was bitten by a sheriffs department K-9 police dog. Appellants argue the trial court erred by (1) allowing the case to proceed as a negligence action as opposed to a battery action, (2) placing the burden of proving justification on them rather than on McDonald, (3) allowing lay and expert witness testimony about United States Supreme Court use-of-force case law, and (4) rejecting their position that A.R.S. § 11-1025(B) prohibits an action for damages for injuries inflicted by a K-9 under the circumstances. For the reasons that follow, we affirm.

         Factual and Procedural Background

         ¶2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the jury verdict. Zuluaga ex rel. Zuluaga v. Bashas', Inc., 242 Ariz. 205, ¶ 2, 394 P.3d 32, 34 (App. 2017). On November 14, 2013, around 11:30 P.M., Pima County Sheriffs Deputy Matthew Dixon was driving south on a road in the Tucson foothills when McDonald, driving north in the wrong lane, nearly hit him head-on. Dixon called the incident in on his radio, activated his emergency lights, and made a U-turn, intending to stop the car for driving the wrong way and nearly causing a collision.

         ¶3 After a brief pursuit at speeds of about thirty-five miles per hour, the car stopped. Dixon got out and began yelling commands to McDonald. Although Dixon could see McDonald's driver-side front window was down, McDonald did not respond to or comply with the commands.

         ¶4 An aerial video of the incident, taken from a law enforcement airplane using heat imaging technology and later admitted into evidence, begins around this point. A few minutes into the stop, Deputy Klein, a K-9 handler, arrived with his dog and took over the job of issuing commands to McDonald, including something to the effect of "canine, talk to me now or I will send my dog." At one point, McDonald looked over toward where Klein and the K-9 were standing. Then McDonald rolled up his window and drove away, continuing along the same road.

         ¶5 Another deputy, who was farther north along the road, deployed road spikes. McDonald ran over the spikes, which punctured three of his tires. Nevertheless, the pursuit continued at speeds of thirty-five to forty miles per hour. Over the radio, Klein said, "If the vehicle stops, dog will be deployed if he goes mobile."

         ¶6 McDonald came to a stop just south of a major intersection. His car hopped the curb as it stopped. To the right of his car there was a small desert area and a residential area beyond that. About seven marked squad cars, with their emergency lights activated, fanned out behind and to the left of his car, and about nine uniformed deputies were on-scene. The deputies considered this a high-risk stop, so they did not approach the car. Klein got out with his K-9 but remained behind his squad car, yelling more commands from there. Other deputies had their guns drawn.

         ¶7 Shortly after he stopped, McDonald got out. Klein warned McDonald to "stop or you will be bitten." The video recording admitted at trial shows McDonald walking slowly toward the rear of his car, reaching out and putting his hand on the trunk of the car as if to steady himself. He continued walking around the trunk of his car and then back up along the passenger side, stopping about halfway up the passenger side. As he slowly brought his hands up to rest them on top of the car, Klein released the K-9, which ran over and bit McDonald's leg and dragged him around on the ground. The K-9 held the bite for thirty-eight seconds, causing serious injuries and permanent disfigurement.

         ¶8 Subsequent investigation revealed that McDonald has Type 1 diabetes and at the time of the incident his blood sugar level had been dangerously low. When the deputies arrested him, they found glucose tabs in his sock. They also discovered he had a gun in an ankle holster. None of the deputies had been aware that McDonald was armed before Klein released the K-9. There were no bulges in his clothing to suggest that he might have had a gun, nor did McDonald reach for the gun at any point during the incident.

         ¶9 McDonald sued the Pima County Sheriff [2] and Klein, alleging negligence. The trial court denied defendants' motion for summary judgment, holding that A.R.S. § 11-1025 did not bar the action, and that McDonald could proceed under a negligence theory even though Klein had intentionally released the K-9. The court also denied defendants' motion in limine to preclude testimony about Graham v. Connor, 490 U.S. 386 (1989).

         ¶10 The case proceeded to a jury trial.[3] The court rejected defendants' request for an instruction allocating the burden of proving lack of justification to McDonald, and instead instructed the jury that defendants had the burden of proving justification. The jury returned a verdict of $650, 000, attributing ninety-five percent of the fault to defendants and five percent to McDonald. After the court denied defendants' motions for new trial or for judgment as a matter of law, they timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101 (A)(1).

         Negligence or Battery

         ¶11 Appellants first argue that because there was no dispute that Klein intentionally released the K-9 in order to apprehend McDonald, the trial court erred by denying their motion for summary judgment as to negligence.[4] They maintain there is no cause of action against a law enforcement officer in Arizona for negligent use of force, and McDonald should have been required to bring this case under an intentional tort such as battery rather than as a negligence action.

         ¶12 Under Arizona law, a battery occurs where a person "intentionally engages in an act that results in a harmful or offensive contact with the person of another." Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, ¶ 9, 70 P.3d 435, 438 (2003), citing Restatement (Second) of Torts §§ 13, 18 (1965); see also Chappell v. Wenholz, 226 Ariz. 309, ¶ 10, 247 P.3d 192, 195 (App. 2011) ("[B]attery is an intentional tort under Arizona law."). In contrast, negligence occurs where the defendant has breached a duty to conform to a certain standard of care and the defendant's conduct is causally connected to the plaintiff's actual damages. See Gipson v. Kasey, 214 Ariz. 141, ¶ 9, 150 P.3d 228, 230 (2007).

         ¶13 We begin with the proposition that, in bringing suit, it is the plaintiff's prerogative to identify particular harms a defendant has caused and the plaintiff is free to connect those harms to particular theories of liability as he or she sees fit. Quite often, that decision will have significant substantive ramifications. See, e.g., Shetter v. Rochelle, 2 Ariz. App. 358, 366-67, 409 P.2d 74, 82-83 (1965) (although label placed on cause of action has no "great significance, " "theories of liability still have substance" and whether theory of liability against surgeon who failed to explain risk to patient adequately was battery or negligence would affect extent of damages for which surgeon could be liable). It is also well established that a single incident or course of conduct may give rise to multiple possible theories of liability. See, e.g., Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474, ¶¶ 59-61, 38 P.3d 12, 28-29 (2002) (breach of implied covenant of good faith and fair dealing can lead to liability in either contract or tort depending on circumstances).

         ¶14 Appellants cite no Arizona authority barring McDonald from styling this case as a negligence action rather than a battery action, and we are aware of none. Arizona case law on the issue is admittedly limited, but in two similar cases, negligence-based claims have at least been raised. In Mulhern v. City of Scottsdale, plaintiffs pursued a wrongful-death claim against the city based on the alleged negligence of an on-duty police officer who had intentionally shot and killed their family member. 165 Ariz. 395, 396-97, 799 P.2d 15, 16-17 (App. 1990). Their theory was that the officer had "acted negligently in using deadly force." Id. at 398, 799 P.2d at 18. This wrongful-death claim was allowed to proceed all the way to a jury verdict. Id. at 396, 799 P.2d at 16. Weekly v. City of Mesa, 181 Ariz. 159, 888 P.2d 1346 (App. 1994), is also somewhat instructive. In that case, Weekly refused to submit to an arrest, and then a K-9 officer "directed the dog to attack" him. Id. at 162, 888 P.2d at 1349. Weekly sued the city and alleged, among other claims, "negligent use of excessive force." Id. at 161-62 & n.2, 888 P.2d at 1348-49 & n.2. Although no issues related to that claim were before this court on appeal, neither did our opinion suggest there was any legal barrier to a cause of action grounded in negligence principles, even though the officer intended to release the K-9 for the purpose of attacking Weekly. See id.

         ¶15 While we acknowledge their limitations, Mulhern, and to a lesser extent, Weekly, are nevertheless consistent with the proposition that a plaintiff may bring an action sounding in negligence against an appropriate public entity where a law enforcement officer's process of evaluating whether to use force or how much force to use fell below the standard of care of a reasonable officer under the circumstances and the subsequent decision to use force resulted in damages. Today we so hold.[5]

         ¶16 In support of our holding, we find persuasive a case from the District of Columbia. In Reed v. District of Columbia, 474 F.Supp.2d 163, 165, 174 (D.C. 2007), the District maintained its officer had shot the decedent in self-defense reasonably believing she had a gun. Plaintiffs' witnesses testified the officer had shot her while her hands were empty and held up in the air. Id. at 165-66, 174. The District argued summary judgment was appropriate as to the plaintiffs' negligence claims because those claims were "indistinguishable from their claims for assault and battery." Id. at 173. The court disagreed, determining the claims were separate and distinct. Id. at 173-74. It held that summary judgment for the defendants on negligence was inappropriate because a "distinct act of negligence, a misperception of fact, may have played a part in the [officer's] decision to fire." Id. at 174, quoting District of Columbia v. Chinn, 839 A.2d 701, 711 (D.C. 2003). Under the Reed plaintiffs' theory and version of events, "a negligent act . . . precede[d] the application of the relevant force of resort to firearms, i.e., prior to the pulling of the trigger." Id., quoting Chinn, 839 A.2d at 711; accord Brown v. Ransweiler, 89 Cal.Rptr.3d 801, 817 (Ct. App. 2009) (officers have duty to use reasonable care in deciding to use deadly force, and lack of due care can give rise to negligence liability for intentional shooting by officer).

         ¶17 Here, as in Reed, McDonald's negligence claim is distinct from a hypothetical battery claim he could have chosen to bring. His negligence claim focuses on whether a reasonable officer in Klein's position would have concluded that releasing a K-9 was reasonable and appropriate under the totality of the circumstances leading up to that decision. See Austin v. City of Scottsdale, 140 Ariz. 579, 581-82, 684 P.2d 151, 153-54 (1984) (whether dispatcher who did not assign emergency call as department procedures mandated and whether department's failure to warn decedent's family of reported threat constituted negligence were jury questions - "the City of Scottsdale, having opted to provide police protection, had a duty to act as would a reasonably careful and prudent police department in the same circumstances"). This is a separate issue from whether Klein's subsequent intentional act of releasing the K-9 resulted in a harmful or offensive contact with McDonald's person-the central question of a battery claim McDonald chose not to bring. See Chinn, 839 A.2d at 707 (negligence theory of liability appropriate if there is "an independent breach of a standard of care beyond that of not using excessive force in making an arrest, which may properly be analyzed and considered by the jury on its own terms apart from the intentional tort of battery and the defense of privilege").

         ¶18 As in Reed, there are two competing versions of events here. Appellants argued Klein reasonably believed releasing the K-9 was necessary for officer safety, while McDonald maintained this belief was not reasonable under the totality of the circumstances leading up to Klein's decision to "pull the trigger" on the K-9. Cf. Chinn, 839 A.2d at 711 (negligence theory appropriate where, in at least one of multiple "alternate scenarios, " "a distinct act of negligence, a misperception of fact, may have played a part in the decision to fire").

         ¶19 Appellants cite Restatement (Second) of Torts § 282 cmt. d (1965), which excludes from the definition of negligence "conduct which creates liability because of the actor's intention to invade a legally protected interest" of another. But here, McDonald alleged that Klein's evaluation of whether to intentionally release the K-9 was negligent, not that he intended to invade McDonald's legally protected interest by releasing the canine. Another case appellants rely on, City of Miami v. Sanders, 672 So.2d 46, 48 (Fla. Dist. Ct. App. 1996), acknowledges this distinction as well. Although that case holds there is no cause of action for "'negligent' use of excessive force" because use of excessive force is necessarily intentional, [6] it recognizes "that a separate negligence claim based upon a distinct act of negligence may be brought against a police officer in conjunction with a claim for excessive use of force." Id., citing Mazzilli v. Doud, 485 So.2d 477 (Fla. Dist. Ct. App. 1986).[7] The trial court correctly rejected appellants' position that the existence of a separate potential battery claim should have legally precluded McDonald from bringing a negligence action based on earlier conduct.

         Burden of Proof of Justification Under A.R.S. §§ 13-409 and 13-413

         ¶20 Appellants argue the trial court erred by declining their requested justification instruction. The proposed instruction would have stated it was McDonald's burden to prove Klein's use of the K-9 was not justified. The court instead instructed the jury that it was Klein's burden to prove the release of the K-9 was justified. As questions of law, we review de novo the appropriate burden of proof, Am. Pepper Supply Co. v. Fed. Ins. Co., 208 Ariz. 307, ¶ 8, 93 P.3d 507, 509 (2004), and whether jury instructions accurately state the law, State v. Fierro, 220 Ariz. 337, ¶ 4, 206 P.3d 786, 787 (App. 2008). We also review de novo whether justification may be raised as a defense to a charge or claim. See State v. Almaguer, 232 Ariz. 190, ¶ 6, 303 P.3d 84, 87 (App. 2013).

         ¶21 Section 13-413, A.R.S., provides: "No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter." One provision in the same chapter applies to certain uses of force in effecting an arrest. It says:

A person is justified in threatening or using physical force against another if in making or assisting in making an arrest or detention or in preventing or assisting in preventing the escape after arrest or detention of that other person, such person uses or threatens to use physical force and all of the following exist:
1. A reasonable person would believe that such force is immediately necessary to effect the arrest or detention or prevent the escape.
2. Such person makes known the purpose of the arrest or detention or believes that it is otherwise known or cannot reasonably be made known to the person to be arrested or detained.
3. A reasonable person would believe the arrest or detention ...

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