Opinion
2 CA-CV 2023-0092
03-28-2024
Benjamin Wiggins, an adult individual, Plaintiff/Appellant, v. Timothy St. Cyr, individually and on behalf of his marital community; City of Tucson, a governmental entity, Defendants/Appellees.
Ahwatukee Legal Office P.C., Phoenix By David L. Abney and Zachar Law Firm P.C., Phoenix By James E. Abraham and Christopher J. Zachar Counsel for Plaintiff/Appellant Michael G. Rankin, City Attorney By Sarah E. Pace and Dennis P. McLaughlin, Principal Assistant City Attorneys, Tucson Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20213558 The Honorable Casey F. McGinley, Judge
Ahwatukee Legal Office P.C., Phoenix By David L. Abney and Zachar Law Firm P.C., Phoenix By James E. Abraham and Christopher J. Zachar Counsel for Plaintiff/Appellant
Michael G. Rankin, City Attorney By Sarah E. Pace and Dennis P. McLaughlin, Principal Assistant City Attorneys, Tucson Counsel for Defendants/Appellees
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge
¶1 Plaintiff Benjamin Wiggins appeals from the superior court's summary judgment in favor of Timothy St. Cyr and the City of Tucson (collectively, "defendants") on Wiggins's personal injury claims. Wiggins argues the court erred in granting summary judgment because there are material facts in dispute. For the following reasons, we vacate the judgment and remand for further proceedings.
Factual and Procedural Background
¶2 We view the facts and reasonable inferences in the light most favorable to Wiggins as the non-moving party. Rosenberg v. Sanders, Ariz.___, ¶ 24, 539 P.3d 120, 125 (2023). In 2021, Wiggins filed a complaint against the defendants. He alleged that in August 2020, he was in the front passenger seat of a car, driven by David Unvericht, traveling south on Kolb Road in Tucson. St. Cyr, a detective with the Tucson Police Department, was turning left onto southbound Kolb Road as he exited a private drive. Wiggins alleged St. Cyr made this turn directly in front of the car in which Wiggins was traveling, causing an accident that injured Wiggins. Wiggins claimed St. Cyr was negligent and his conduct also amounted to negligence per se. Wiggins further asserted the city is vicariously liable because St. Cyr had been acting in the course and scope of his employment.
The defendants filed a third-party complaint against Unvericht, claiming his negligence was the singular cause of Wiggins's injuries. Unvericht has not appeared on appeal.
¶3 The defendants moved for summary judgment. After a hearing, the superior court determined there was no dispute as to any material fact, and granted the defendants' motion. The court subsequently entered a final judgment, and Wiggins appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶4 Wiggins argues he pointed to evidence that placed material facts related to St. Cyr's negligence and negligence per se in dispute, and that the superior court therefore erred in granting summary judgment to the defendants. We review de novo whether the court correctly entered summary judgment. Rosenberg,___ Ariz.___, ¶ 24, 539 P.3d at 125.
¶5 Summary judgment is required "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). The moving party has the burden of "demonstrating both the absence of any factual conflict and his or her right to judgment." United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195 (App. 1990); see also Jones v. Respect the Will of the People, 254 Ariz. 73, ¶ 37 (App. 2022). "Only if the moving party satisfies this burden will the party opposing the motion be required to come forward with evidence establishing the existence of a genuine issue of material fact that must be resolved at trial." Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶ 12 (App. 2008).
¶6 In their motion for summary judgment, the defendants argued that "there is no evidence that St. Cyr breached his duty to drive with reasonable care and thereby caused Wiggins's injuries." In support, they pointed to testimony from the parties' depositions and the accident reconstruction report of their expert, Dr. Peles.
¶7 Wiggins testified in his deposition that he was receiving a ride home from the grocery store when the accident occurred. He stated that he remembered seeing the "chrome bumper" of a truck "[a]t the last minute" and that "[t]he truck just turned out" and "wasn't even all the way out." Wiggins admitted that he "[did not] know how the truck got there, [he] just [knew] that [he] saw it when it was there."
¶8 St. Cyr testified in his deposition that the accident occurred after he had turned left out of a store's parking lot onto southbound Kolb Road. He recalled that of the three southbound lanes, the one closest to him had traffic all the way to the median break, where he intended to turn. He had believed there was insufficient space for him to safely turn left into the closest southbound lane without blocking the break in the median, and so when he made his turn, he directed his truck into the middle lane. St. Cyr stated that he had no "recollection of each individual . . . movement," and no memory of looking to his right to see if there was southbound traffic approaching, but offered that he "didn't see anything that would have been a hazard or [he] wouldn't have continued that turn." He recalled that he had completed his turn into the middle lane with his truck "either in the lane or nearly entirely in the lane" and that he had been moving southbound when he felt the impact of the car behind him.
¶9 Dr. Peles opined that: (1) Unvericht, the driver of Wiggins's car, "was not paying attention to his surroundings so failed to perceive and react to the presence and movement of the . . . truck within the time frame to be expected of a reasonably alert and responsive driver"; and (2) had Unvericht "been paying attention to his surroundings, he would have had sufficient time to slow or stop . . . to avoid crashing into the . . . truck." Dr. Peles also opined that there was a 9.3 second gap between when St. Cyr began his turn and the collision, that Wiggins's car was 546 feet away when St. Cyr began his turn, and that Unvericht only started braking eighteen feet from the point of impact. The defendants characterized Dr. Peles's report as "not attribut[ing] any act of negligence to St. Cyr."
Although Wiggins was not the owner of the car, we refer to it as "Wiggins's car" for ease of reference.
¶10 In response, Wiggins pointed to photographs of the accident showing that the damage was primarily to the rear right side of St. Cyr's truck and to the front right side of Wiggins's car. Wiggins argued this creates an inference that St. Cyr was still turning when the collision occurred, and he further pointed to Dr. Peles's report and a diagram acknowledging that St. Cyr's truck angled toward the farthest lane at the time of impact. Wiggins also asserted that the inference that St. Cyr was still turning shows St. Cyr violated several traffic laws.
¶11 The superior court granted summary judgment in favor of the defendants at the hearing, concluding, "[T]here is no disputed material fact as to the causation and the issue of negligence in this case." The court reasoned "the fact that a collision occurs does not, in and of itself, mean that one of those [traffic laws] was violated," and it would "need something to rely upon to show that . . . Dr. Peles' opinion is either untrustworthy at worst or at best contested." The court also stated that "[t]here's nothing that would establish conclusively that a reasonable person in . . . St. Cyr's position would have absolutely seen" Wiggins's car and the evidence is "certainly not sufficient to establish that a reasonable person would not have made the maneuver that . . . St. Cyr made."
¶12 Wiggins argues on appeal that the superior court erred because although the evidence might give rise to a reasonable inference that Unvericht could have avoided the crash, inferences could also be drawn that St. Cyr, at least partially, caused or contributed to the accident. He contends that because competing inferences were possible based on the evidence presented, summary judgment was not appropriate. We agree.
¶13 The evidence showing St. Cyr's truck was angled when the collision occurred could permit a reasonable jury to infer that St. Cyr was still in the process of turning or transitioning between lanes. See Comerica Bank v. Mahmoodi, 224 Ariz. 289, ¶¶ 22-23 (App. 2010) (considering conclusions that could be drawn from the evidence by a "reasonable jury"); Allyn, 167 Ariz. at 195 (summary judgment improper if "evidence or inferences would permit a jury to resolve a material issue in favor of either party"). Either inference could support a conclusion that St. Cyr was required to yield to Wiggins's car but failed to do so, and thus breached his duty of care. See, e.g., A.R.S. §§ 28-774 (vehicle entering or crossing highway from private road "shall yield the right-of-way to all closely approaching vehicles"); 28-729(1) (prohibiting changing lanes "until the driver has first ascertained that the movement can be made with safety"); 28-751(2) (vehicle making left turn "[i]f practicable . . . shall make the turn to the left lane immediately available for the driver's direction of traffic"); Sw. Auto Painting &Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 448 (App. 1995) ("Ordinarily, the standard of care to be applied in a negligence action focuses on the conduct of a reasonably prudent person under the circumstances."); Ibarra v. Gastelum, 249 Ariz. 493, ¶ 9 (App. 2020) (violation of specific statutory requirement may constitute negligence per se); Tellez v. Saban, 188 Ariz. 165, 173 (App. 1996) (even where statute might not give rise to liability under theory of negligence per se, conduct violating that statute may evidence breach of duty of care).
¶14 The defendants argue that because § 28-774 only requires drivers entering or crossing a highway from a private road to yield to "closely approaching vehicles," St. Cyr had no duty to yield to Wiggins's car because Dr. Peles estimated the car was approximately 287 feet away when St. Cyr pulled through the median. But again, the positioning of the vehicles at impact support an inference that St. Cyr had not yet completed his turn, which could also suggest that Wiggins's car was approaching closer than Dr. Peles estimated. And even if the distance estimated by Dr. Peles is accurate, the jury could nevertheless determine that St. Cyr was required to yield considering the type of maneuver he performed-which according to Dr. Peles included crossing over multiple lanes.
¶15 In any event, a statute only defines the standard of care under a theory of negligence per se. See, e.g., Deering v. Carter, 92 Ariz. 329, 333 (1962) (plaintiff establishes negligence per se if jury finds defendant committed specific act prohibited by statute); St. George v. Plimpton, 241 Ariz. 163, ¶ 18 (App. 2016). The standard of care under a general theory of negligence is instead only that "of a reasonably prudent person under the circumstances." Lasley v. Shrake's Country Club Pharmacy, Inc., 179 Ariz. 583, 586 (App. 1994); see also, e.g., Mitchell v. Colquette, 93 Ariz. 211, 216 (1963) ("It is the duty of a driver of an automobile when entering an intersection to exercise such care as an ordinarily reasonable and prudent person would do in like circumstances ...."); Sanders v. Alger, 242 Ariz. 246, ¶ 24 (2017); Restatement (Second) of Torts § 283 (1965). Therefore, even if the finder of fact does not ultimately conclude that St. Cyr was negligent per se, they may nevertheless find liability under the common law standard. See Hutto v. Francisco, 210 Ariz. 88, ¶ 15 (App. 2005).
¶16 Moreover, Dr. Peles's opinion that Unvericht could have applied his brakes sooner or otherwise avoided the collision does not, by itself, negate the possibility that St. Cyr's conduct was a cause of the collision. See Dupray v. JAI Dining Servs. (Phx.), Inc., 245 Ariz. 578, ¶ 17 (App. 2018) (liability may exist even where defendant's conduct only contributed small amount to plaintiff's injuries); A.R.S. § 12-2506(A), (B) (in personal injury actions, trier of fact must consider fault of all persons who contributed to injury, and defendant is liable for amount of damages equating to percentage of fault). Again, where there is evidence that St. Cyr's truck was hit during his left turn or lane change, a reasonable jury could conclude that the collision would not have occurred had St. Cyr not made the maneuver. See Dupray, 245 Ariz. 578, ¶ 17. Evidence that Unvericht could have taken some action to avoid the collision creates an issue of comparative fault, which is always a question for the jury. See Ariz. Const. art. XVIII, § 5; Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 359 (1985).
¶17 The defendants raise several other arguments that summary judgment is appropriate here. They generally challenge the probative value of Wiggins's deposition testimony and contend that the orientation of the vehicles at impact is, at most, only a "scintilla" of evidence supporting Wiggins's claims. See Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990) (motion for summary judgment should not be denied "simply on the speculation that some slight doubt . . ., some scintilla of evidence, or some dispute over irrelevant or immaterial facts might blossom into a real controversy in the midst of trial"). They also claim that St. Cyr's lack of memory cannot support a jury finding of negligence and that St. Cyr's "habit testimony . . . stands as affirmative and undisputed evidence" that he looked for traffic approaching before turning.
¶18 We disagree that the truck's orientation at impact is only a scintilla of evidence, because, as explained above, the inferences which can be drawn from that fact are significant to the issues of breach and causation. Additionally, this fact and the inferences to be drawn therefrom challenge the very evidence which the defendants claim is undisputed-specifically that St. Cyr always looks for approaching traffic before turning.
¶19 The factual issues of breach and causation are both fairly in dispute. See Gipson v. Kasey, 214 Ariz. 141, n.1 (2007). Because the superior court was required to choose between conflicting inferences that may be drawn from the evidence, it erred by granting summary judgment in favor of the defendants. See Shaw v. Petersen, 169 Ariz. 559, 561 (App. 1991).
Disposition
¶20 For the foregoing reasons, we vacate the superior court's judgment and remand for further proceedings consistent with this decision. As the successful party on appeal, Wiggins is entitled to his reasonable costs upon compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-342(A).