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Ryan v. Napier

Supreme Court of Arizona

August 23, 2018

Susan E. Ryan, As Administrator Of The Estate of Brian McDonald, Plaintiff/Appellee,
Mark Napier, Pima County Sheriff; and Joseph Klein, Defendants/Appellants.

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

         Opinion of the Court of Appeals, Division Two 243 Ariz. 277 (App. 2017)

          Barbara LaWall, Pima County Attorney, Nancy J. Davis (argued), Deputy County Attorney, Tucson, Attorneys for Mark Napier, Pima County Sheriff, and Joseph Klein

          Amy Hernandez (argued), Dwyer Hernandez, P.C., Tucson, Attorneys for Susan E. Ryan

          Stanley G. Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson; David L. Abney, Ahwatukee Legal Office, P.C., Phoenix, Attorneys for Amicus Curiae Arizona Association for Justice/Arizona Trial Lawyers Association

          Nicholas D. Acedo, Jacob B. Lee, Struck Love Bojanowski & Acedo, PLC, Chandler, Attorneys for Amici Curiae League of Arizona Cities and Towns, Arizona Association of Chiefs of Police, Arizona Municipal Risk Retention Pool, Apache County Sheriff Joe Dedman, Cochise County Sheriff Mark Dannels, Coconino County Sheriff Jim Driscoll, Gila County Sheriff Adam Shepherd, Graham County Sheriff Preston Allred, Greenlee County Sheriff Tim Sumner, La Paz County Sheriff Bill Risen, Maricopa County Sheriff Paul Penzone, Mohave County Sheriff Doug Schuster, Navajo County Sheriff Kelly Clark, Pinal County Sheriff Mark Lamb, Santa Cruz County Sheriff Tony Estrada, Yavapai County Sheriff Scott Mascher, Yuma County Sheriff Leon Wilmot

          JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES PELANDER, BOLICK, GOULD, and LOPEZ joined.



         ¶1 The negligence claimant here recovered damages for dog-bite injuries he received when a law enforcement officer intentionally released a police dog against him. We today hold that plaintiffs cannot assert a negligence claim based solely on an officer's intentional use of physical force. The appropriate state-law claim is for battery, and an officer asserting the justification defense set forth in A.R.S. § 13-409 bears the burden of proof on that issue. Plaintiffs may, however, base a negligence claim on conduct by the officer that is independent of the intentional use of physical force.

         ¶2 We also hold that at trial on such a battery claim, expert witnesses cannot suggest to the jury that Graham v. Connor, 490 U.S. 386 (1989), which sets forth factors pertinent to 42 U.S.C. § 1983 excessive force cases, is the legal standard for deciding the applicability of § 13-409. Experts may explain their reliance on the factors, as appropriate, but should not imply by mentioning their source that these factors legally control the jury's determination of justification.


         ¶3 Brian McDonald was driving in Tucson late one evening when he swerved into the opposite lane and nearly collided with a patrol car driven by Pima County Sheriffs Deputy Matthew Dixon. Activating his siren and flashing lights, Dixon made a U-turn and pursued McDonald. McDonald did not immediately stop, and Dixon called for assistance. Other deputies placed traffic spikes in McDonald's projected path, but he pulled over before hitting them. Dixon stopped and, treating the encounter as high-risk, shouted at McDonald to show his hands and throw out the car keys. Although McDonald's window was down, he did not respond.

         ¶4 More deputies, including Deputy Joseph Klein and his police dog, Barry, arrived at the scene. Barry was trained to "bite and hold" on command to assist officers in apprehending suspects. Klein assumed command and warned McDonald he would "send [his] dog" unless McDonald started talking. McDonald responded by rolling up his window and driving towards the spikes with the deputies giving chase.

         ¶5 Pursuing, Klein announced over the police radio that if McDonald "went mobile," after the spikes stopped his car, Klein would deploy Barry. McDonald's car ran over the spikes, hopped a curb, and stopped. McDonald staggered from the car and walked around the back toward the passenger side while leaning on the car for support. Klein got out of his patrol car with Barry and warned McDonald, "stop or you will be bitten." When McDonald reached the passenger-side door, he stopped and put his hands on the roof of the car. According to Klein, he intentionally released Barry the instant before McDonald placed his hands on the top of the car. Barry bit McDonald's leg and held onto it between twenty-five and thirty-eight seconds until Klein ordered the dog to release. McDonald suffered severe injuries.

         ¶6 Authorities later learned that McDonald had type 1 diabetes and, at the time of the events here, was experiencing a severe hypoglycemic event. As a result, he lacked cognitive function to understand what was happening or respond to police commands. The state did not pursue criminal charges against McDonald.

         ¶7 McDonald sued Klein and the Pima County Sheriff ("Defendants"), alleging that Klein "negligently released" Barry and that use of the dog "constituted a negligent, unjustified, and excessive use of force." McDonald's claim against the Pima County Sheriff was based solely on vicarious liability. (The trial court granted summary judgment against McDonald on two additional claims, including a claim that the Pima County Sheriff "failed to promulgate appropriate and adequate policies and procedures." That ruling is not at issue here.) McDonald did not assert claims for battery or for deprivation of rights under § 1983. Instead, as related at oral argument before this Court, McDonald deliberately decided to assert only a negligence claim.

         ¶8 Defendants moved for summary judgment, arguing that Klein's intentional use of force could not constitute negligence. The trial court denied the motion two weeks before trial, ruling that McDonald could pursue a claim for "negligent use of force" despite Klein's intentional decision to release Barry against McDonald. The court correctly noted that law enforcement officers can be liable for negligent acts, see Clouse ex rel. Clouse v. State, 199 Ariz. 196, 198 ¶ 9 (2001), but did not otherwise explain its ruling.

         ¶9 At trial, the primary issues were whether Klein acted negligently in releasing Barry and, if so, whether he was legally justified in doing so, thereby relieving Defendants of liability pursuant to §§ 13-409, -413. Over Defendants' objection, the court permitted evidence of factors identified in Graham, in the Fourth Amendment context, to assess the reasonableness of police force. The court also instructed the jury that Defendants bore the burden of proving that Klein's release of Barry was justified.

         ¶10 The jury found in favor of McDonald and awarded him $617, 500 in damages but found him five percent at fault. Defendants unsuccessfully moved for a new trial, asserting that the court improperly instructed the jury on negligence, incorrectly admitted evidence of the Graham factors, and incorrectly instructed the jury that Defendants bore the burden of proving justification under § 13-409.

         ¶11 The court of appeals affirmed in a split decision. Ryan v. Napier, 243 Ariz. 277 (App. 2017). It declined to "decide whether Arizona law recognizes a separate tort of negligent use of excessive force." Id. at 282 ¶ 19 n.6 (internal quotation marks omitted). Instead, the court concluded that McDonald could recover damages under a negligence claim for "Klein's evaluation of whether to intentionally release [Barry]," which the court found distinct from a battery claim based on Klein's intentional release of the dog. Id. at 282 ¶ 19. The court also determined that the justification defense under §§ 13-409, -413 did not apply to negligence claims, meaning that if Klein negligently released Barry, he was not privileged to do so. Id. at 283 ¶ 23. Thus, it did not decide who bears the burden of proving justification in intentional tort cases. Id. Finally, the court rejected Defendants' arguments that evidence of the Graham factors was inadmissible. Id. at 284-87 ¶¶ 27-37.

         ¶12 We granted review to decide whether the trial court and court of appeals properly decided several issues of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.[1]


         I. The Negligence Claim

         A. Review of order denying summary judgment

         ¶13 Defendants argue that the trial court erred by denying their motion for summary judgment. They assert that an intentional use of excessive force is an intentional tort ...

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