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Stearney v. United States

United States District Court, D. Arizona

May 16, 2019

Kaori Stearney, et al., Plaintiffs,
v.
United States of America, Defendant.

          ORDER

          DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.

         On the 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.

         The 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.

         I. Background.

         This 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.

         A. The Relevant Terrain.

         U.S. 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, 600 residents.

         Several 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.

         Once on 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.

         Looking 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.

         B. The Pursuit.

         March 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.

         A short 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.

         The 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.

         The 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.

         Butler 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.

         Dividing 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 pursuit.[1]

         In 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 Peles.[2]

         Meanwhile, 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 finds reasonable.

         Moments 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.

         Tomohiro, 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.

         C. The Hirayama Family and R.H.'s Injuries.

         Tomohiro 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.

         When 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.

         Before 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 behind.

         R.H. 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 grandparents.

         In 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.

         II. Liability.

         Plaintiff 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.

         A. The FTCA and Arizona Law.

         Pursuant 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).

         Under 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. 2001).

         To 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.

         Plaintiff's 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.

         B. Duty and Standard of Care.

         Defendant 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.

         Duty is 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. 1984).

         “The 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. 1987).

         1. The Governing Standard.

         Plaintiff 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 doubt ...

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