United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
night of March 28, 2014, on the Navajo Nation reservation, a
drunk driver collided with a van containing the Hirayama
family. Father Tomohiro, mother Sachiyo, son Yuki, along with
the drunk driver and his passenger, all died in the crash.
Only nine-year-old R.H. survived. Plaintiff Kaori Stearney,
on behalf of R.H. and as administrator of Yuki's estate,
brought wrongful death, negligence, and negligent infliction
of emotional distress claims against the United States under
the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)
and 2671 et seq. (“FTCA”). Plaintiff
alleges that the Navajo Nation Police Department negligently
caused the accident by pursuing the drunk driver.
Court held a bench trial on April 16-24, 2019, and now finds
in favor of Plaintiff on all claims except negligent
infliction of emotional distress. Applying apportionment of
fault principles of Arizona law, as required under the FTCA,
the Court assigns 90% of the fault to the drunk driver who
hit the Hirayama family and 10% to the United States, and
awards $1, 102, 872 in damages against the United States.
order sets forth the Court's findings of fact and
conclusions of law under Rule 52 of the Federal Rules of
Civil Procedure. The Court provides some citations to the
record, but the citations should not be regarded as the sole
basis for the Court's ruling. The Court's findings
and conclusions are based on all of the testimony and
exhibits admitted during the trial.
The Relevant Terrain.
Highway 160 is a two-lane road that runs in an east-west
direction across the Navajo reservation between Tuba City and
Kayenta, in northern Arizona. Tuba City is home to about 8,
features of Highway 160 are relevant. Near milepost
(“MP”) 322 in Tuba City, Warrior Drive forms a
three-way T-junction with Highway 160. Ex. 143. Further east,
at ¶ 344, the highway begins a downhill grade. The road
curves left and, at ¶ 345, continues in a north-easterly
straightway for several miles. Looking down the hill from MP
344, a large dirt mound blocks the view of the highway after
MP 345. Ex. 123.
the straightaway after the curve, a rock formation called
Elephant's Feet sits on the north side of the road east
of MP 345. Exs. 84k, 124. Just east of Elephant's Feet,
Indian Route 6011 (a dirt road) runs perpendicular from the
south side of the highway. Ex. 143 at 27.
north-east on Highway 160 from MP 345, the highway runs in a
straight direction but varies in elevation. The highway at
¶ 347 is visible on the horizon, but portions of the
highway in between are obscured by crests and dips in the
road. See Court's Livenote Tr.
(“Tr.”) at Apr. 24, 2019 at 18-27. The accident
occurred at ¶ 346.6.
28, 2014 was a clear, cold night, with the moon below the
horizon. While patrolling in Tuba City that evening, Navajo
Nation Police Sergeant David Butler saw a 2009 Ford F150
crew-cab pick-up truck run a stop sign and proceed through
the intersection. Butler, who was coming from the opposite
direction, turned his police vehicle around, activated his
emergency lights and sirens, and began to follow the truck.
The truck did not pull over, but instead increased its speed
and drove around a bend in the road. Butler lost sight of the
truck, turned off his emergency equipment, and pulled to the
side of the road.
time later, a vehicle pulled up to Butler's vehicle and
reported that a Ford truck was driving recklessly in a nearby
neighborhood, had caused an accident, and had left the scene.
As Butler proceeded to the area of the reported accident, he
saw the same Ford truck he had seen earlier, but now with
only a single operable headlight on the driver's side and
an inoperable dangling headlight on the passenger side.
Butler again activated his emergency equipment and followed
the truck to the T-junction of Warrior Drive and Highway 160.
truck stopped behind another vehicle at the junction, and
Butler pulled behind the truck with his lights flashing and
sirens activated. Navajo Nation Police Officer Nicole Yellow
arrived shortly thereafter - at about 9:47 p.m. - and pulled
along the left side of the truck with her emergency equipment
activated. When the vehicle ahead of the truck moved forward,
the truck pushed forward and to the left between the cars,
nearly hitting Officer Yellow, and turned east onto Highway
160 at ¶ 322. Butler directed Yellow to hold back so she
would not be hit, followed the truck onto eastbound Highway
160, and began his pursuit.
truck accelerated quickly and pulled away from Butler. Butler
drove as fast as he could, but his vehicle's speed
governor limited his top speed to 98 mph. The Ford truck
pulled away and, according to Butler, had gained three
quarters of a mile on Butler by MP 323. Yellow followed
Butler, but stopped her pursuit after losing sight of the
truck about six miles east of Tuba City. She continued
driving east on Highway 160.
continued to follow the truck at high speed with his lights
and siren activated. At 9:54 p.m. - about six minutes into
the pursuit - Butler gave the truck's license plate
information to dispatch and was told that the truck's
owner was Yazzie Brown. By 9:57 p.m., Butler suspected that
the driver of the truck was Kee Brown and that he was heading
to Cow Springs, Arizona. Butler was correct - the driver was
Kee Brown. Butler knew of a prior police department incident
with Brown, and requested further information on him. As
Butler followed the truck, he saw it swerving in and out of
traffic at over 100 mph.
the distance between where the pursuit started and the crash
occurred by the time it took Butler to travel this distance,
the Court finds that Butler was driving an average of 94
miles per hour while following the truck. This average
includes his start-up time at the beginning of the pursuit,
and, as he testified, his slowing to 80 mph on curves and to
40 mph while passing Indian Route 6011. As a result, Butler
likely was driving faster than 94 mph for much of the
testimony the Court found credible, defense expert Dr. Joseph
Peles testified (consistent with Butler's testimony) that
Butler last saw the truck when Butler was at about MP 343.75,
just as the highway begins to descend and before it curves
left. At that point, Peles testified, the truck would have
been at about MP 345.03, and just about to disappear behind
the large dirt mound near Elephant's Feet and proceed
northeast on the straightaway. Thus, after a 23-mile pursuit,
Butler was only 1.28 miles behind the truck, according to
the Hirayamas' Chrysler minivan was driving west on
Highway 160. R.H. testified that before the crash her father
commented, in a rather nervous voice, that he could see
flashing lights, and that her brother, Yuki, asked if it was
the police. Defense expert Peles places the Hirayama's
van at ¶ 346.8 at this point, a conclusion the Court
later, the truck crossed the center line going 92 to 100 mph.
Tomohiro braked hard from 65 to 41 mph and tried to steer
left, but the truck crashed head-on into the Hirayama van at
¶ 346.6. R.H. awoke to shattered glass, extreme pain,
and her family slumped around her. She shook her brother, who
moaned but did not move. R.H. screamed for help inside the
van. She was removed by Officer Yellow, who arrived at the
scene after Sergeant Butler, and was air-lifted to a
Flagstaff hospital and later transferred to Phoenix
Children's Hospital for emergency surgery.
50 years old, Sachiyo, 42, and Yuki, 16, died at the scene,
as did Brown and his passenger. A post-mortem toxicology
report found that Brown's blood alcohol level was .267,
more than three times the legal limit. At the moment of
impact, Peles calculates that Butler was approximately 1.5
miles behind Brown.
The Hirayama Family and R.H.'s Injuries.
had a bachelor's degree in economics. Before his death,
he was 11 months into a five-year contract with the
engineering and robotics firm Yaskawa America Inc. at the
firm's Waukegan, Illinois office. See Ex. 56. He
had worked for the parent company, Yaskawa Electric
Corporation, for 28 years, including in its Netherland's
office for several years.
Yaskawa employees accept contracts to work outside of Japan,
they receive stipends for transportation, housing, education,
and family. With all benefits and salary totaled, Tomohiro
made between $260, 000 and $280, 000 annually. Sachiyo
previously had worked for Yaskawa, but was a fulltime mother
at the time of the accident.
moving to Illinois, the Hirayama family lived in Japan and
the Netherlands. They were close, taking family trips,
traveling abroad, attending baseball games, and dining out
together. They were visiting Arizona to see the Grand Canyon.
When R.H. learned of her parents and brother's passing in
the hospital, she asked her grandfather why they had left her
suffered peritonitis from perforation of her stomach and
multiple fractures in her shoulder, arms, and legs. She
underwent emergency surgery and extensive medical care in
Phoenix and Chicago, and returned to Japan with her maternal
Japan, R.H. stopped talking and would often stay in her room
and cry. Buddhist tradition dictates that a deceased's
remains are to be cremated and placed in urns, and then
buried in sacred ground after 49 days. But for three years
R.H. would not separate from her family's urns. She
permitted the urns to be buried on December 3, 2017, but only
after insisting that some of the ashes be kept in a shrine in
her grandparents' home. R.H. is now 14 years old.
asserts wrongful death claims against the United States for
the deaths of Tomohiro, Sachiyo, and Yuki, and a negligence
claim for R.H.'s injuries and emotional distress.
See Docs. 59; 119 at 15.
The FTCA and Arizona Law.
to the Indian Self-Determination and Education Assistance Act
(“the Act”), Indian tribes may enter into
“self-determination contracts” with the United
States “for the planning, conduct and administration of
programs or services which are otherwise provided to [the
tribe] and their members pursuant to Federal law.”
Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 990
(9th Cir. 2005) (quoting 25 U.S.C. § 450f(a)(1)(E),
transferred to and amended at 25 U.S.C. § 5321).
“Indian tribes . . . and their employees [are] deemed
employees of the [U.S. Bureau of Indian Affairs] for purposes
of the FTCA when they are carrying out functions authorized
in or under a self-determination contract.” Colbert
v. United States, 785 F.3d 1384, 1389-90 (11th Cir.
2015). “These contracts are commonly called ‘638
contracts,' in reference to the public law number of the
[Act].” Shirk v. United States, 773 F.3d 999,
1002 (9th Cir. 2014).
the FTCA's waiver of sovereign immunity, the United
United States may be sued for money damages for
“personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or
employment.” 28 U.S.C. § 1346(b)(1). The United
States is liable to the extent “a private person
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.”
Id. Thus, the parties agree that Arizona substantive
law applies to Plaintiff's claims. See Delta Savings
Bank v. United States, 265 F.3d 1017, 1024-25 (9th Cir.
establish negligence under Arizona law, “a plaintiff
must prove: (1) a duty requiring the defendant to conform to
a certain standard of care; (2) breach of that standard; (3)
a causal connection between the breach and the resulting
injury; and (4) actual damages.” Quiroz v. ALCOA
Inc., 416 P.3d 824, 827-28 (Ariz. 2018). An Arizona
wrongful death action is a statutory negligence claim
requiring a showing that the death was caused by the alleged
tortfeasor's breach of a reasonable standard of care.
See A.R.S. §§ 12-611, 12-612.
wrongful death and negligence claims rely on the same
underlying conduct - the allegedly improper pursuit of Brown
- and she must establish Defendant's breach of a
reasonable standard of care. The Court therefore reaches the
following conclusions of law as to all claims, except
Plaintiff's negligent infliction of emotional distress
claim which is discussed separately.
Duty and Standard of Care.
concedes that it owed a duty to Plaintiff, but the parties
disagree on the standard of care that governs pursuits by
Navajo Nation police officers acting under a 638 contract.
See Doc. 187-1 at 34.
an “obligation, recognized by law, which requires the
defendant to conform to a particular standard of conduct in
order to protect others against unreasonable risks of
harm.” Markowitz v. Ariz. Parks Bd., 706 P.2d
364, 366 (Ariz. 1985). The standard of care is defined as
what the defendant must do, or not do, to satisfy that duty.
Coburn v. City of Tucson, 691 P.2d 1078, 1080 (Ariz.
standard of care for one who undertakes to render services in
the practice of a profession or trade is not the reasonable
man standard.” Watson v. Stratton Restoration,
No. 2 CA-CV 2014-0063, 2015 WL 1394755, at *2 (Ariz.Ct.App.
Mar. 26, 2015) (citing Chamber v. W. Ariz. CATV, 638
P.2d 219, 221 (Ariz. 1981)) (internal quotation marks
omitted). “[W]hen a person holds himself out to the
public as possessing special knowledge, skill, or expertise,
he must perform according to the standard of his
profession.” Sw. Auto Painting & Body Repair v.
Binsfeld, 904 P.2d 1268, 1272 (Ariz.Ct.App. 1995). Where
“the alleged lack of care occurred during the
professional or business activity, the plaintiff must present
expert testimony as to the care and competence prevalent in
the business and profession.” St. Joseph's
Hosp. v. Reserve Life Ins., 742 P.2d 808, 816 (Ariz.
The Governing Standard.
argued at trial that all police officers in Arizona -
including Navajo Nation officers on the reservation - must
follow pursuit termination standards taught by the Arizona
Peace Officers Standards and Training Board
(“AZPOST”). Those standards are found in AZPOST
training materials titled “Classroom Pursuit
Lecture.” See Ex. 20. The relevant portion
reads as follows:
VIII. Termination of a Pursuit A. When a decision to
terminate a pursuit is reached by whatever method, the
termination should be complete and not partial.
B. Turn off your emergency response equipment and pull over
or make an immediate right or left turn.
C. Do not continue to follow the suspect at any distance or
for any reason.
D. Some agencies have a policy that tells the officer to pull
over, exit the vehicle and walk around it. This leaves no