Harianto v. State ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
HARIANTO HARIANTO, et al., Plaintiffs/Appellants,
v.
STATE OF ARIZONA, et al., Defendants/Appellees.
No. 1 CA-CV 18-0446
FILED 6-15-2021
Appeal from the Superior Court in Maricopa County
No. CV 2015-051925
The Honorable John R. Hannah, Jr., Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Zachar Law Firm, Phoenix
By Christopher J. Zachar
Co-Counsel for Plaintiffs/Appellants
The Leader Law Firm PC, Tucson
By John P. Leader
Co-Counsel for Plaintiffs/Appellants
Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Co-Counsel for Plaintiffs/Appellants
Arizona Attorney General’s Office, Phoenix
By G. Michael Tryon
Co-Counsel for Defendants/Appellees
Fennemore Craig PC, Phoenix
By Douglas C. Northup, Philip L. Brailsford, Jennifer L. Clyde
Co-Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.
B R O W N, Judge:
¶1 Appellant Harianto Harianto and several of his family
members (collectively, “Harianto”) were involved in a head-on collision
with a wrong-way driver on I-17 near mile post 248 in Yavapai County.
Harianto filed suit against the State of Arizona (“the State”), alleging the
Arizona Department of Transportation (“ADOT”) and the Department of
Public Safety (“DPS”) were negligent. The superior court granted summary
judgment in favor of the State on all claims. For the following reasons, we
affirm in part, vacate in part, and remand for further proceedings.
BACKGROUND
¶2 The relevant facts are undisputed. Alan Horan (“Horan”)
was spotted before dawn on May 16, 2014, driving north in the southbound
lanes of I-17 in northern Maricopa County. Southbound motorists began
calling 911 at 4:05 a.m. Callers described Horan as driving lock-armed,
staring straight ahead as if in a trance, and unaware of the hazard he was
creating.
¶3 Because Horan was in Maricopa County when the first calls
were received, they were routed to the Metro West district, which extends
north to the southern boundary of Yavapai County. While receiving the
calls, Dispatcher Zeiher, a DPS employee working in that district, alerted
law enforcement officers to respond to the “wrong-way” driver emergency,
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which was automatically classified as the “highest priority-type call.”1
During the emergency, officers responded to the alerts at various times and
locations. DPS Sergeant Sharp was near Anthem when the call was
dispatched about a wrong-way driver. Sharp immediately attempted to
intercept Horan, first at Anthem Way and then Table Mesa Road, but was
unsuccessful. He continued driving north to further respond to the
emergency.
¶4 As Horan approached the boundary between Maricopa and
Yavapai counties, Zeiher contacted the Flagstaff dispatch office, which in
turn notified DPS troopers in Yavapai County about Horan. At 4:22 a.m.,
Trooper Schmidt was driving south on I-17 at mile post 255 when he
received the call about Horan from Flagstaff dispatch. Schmidt initiated a
traffic break to slow and eventually stop the southbound traffic with the
goal of preventing southbound motorists from colliding with Horan’s
vehicle. Once the traffic was stopped, Schmidt intended to use his patrol
car as a barrier between Horan and the southbound motorists.
¶5 At around 4:27 a.m., however, a few miles south of where
Schmidt had started the traffic break, Horan’s car collided head on with
Harianto’s minivan, killing three passengers in the minivan and seriously
injuring another two passengers and the drivers of both vehicles. Horan
had traveled at least 21 miles on I-17 in the wrong direction before the
collision. Police could not determine exactly how, when, or why Horan
began driving the wrong direction, but investigators speculated he was
experiencing medical issues.
¶6 Harianto sued the State, alleging that through its agencies, the
State was negligent in (1) failing to take appropriate measures, including
providing reasonable warnings to prevent wrong-way driving and related
accidents, and (2) failing to adopt or implement any law enforcement
standards to prevent such accidents. Harianto also alleged the State knew
or should have known that wrong-way incursions were occurring on a
1 While Harianto at times mentions “dispatchers,” his briefing focuses
almost exclusively on the alleged negligence of Zeiher, who was primarily
responsible for alerting law enforcement officers about the wrong-way
driver. Thus, although the record suggests several other dispatchers
assisted in handling the emergency, we do not specifically address them in
our analysis. The involvement of the other dispatchers is only relevant to
the extent the record shows they may have been grossly negligent.
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regular basis on Arizona’s highways and that fatal collisions caused by
wrong-way drivers had been increasing in recent years.
¶7 Following substantial discovery, the State moved for
summary judgment, arguing (1) absolute immunity barred Harianto’s
allegation that the State was negligent for failing to adopt wrong-way
driver policies, and (2) statutory qualified immunity precluded the alleged
negligence claim related to DPS’s response. The State also asserted that
regardless of immunity, Harianto failed to establish an applicable standard
of care, breach, or causation. Harianto countered in part that DPS was
subject to liability based on Schmidt’s response to the Horan emergency.
¶8 The superior court granted the State’s motion, finding the
State had statutory qualified immunity for the alleged negligent decisions
DPS personnel made “concerning interdiction of [Horan] on the day of the
collision.” Harianto moved for reconsideration, asserting (1) no qualified
immunity exists for 911 dispatcher negligence claims, and (2) summary
judgment was improper, because if the dispatchers had contacted field
officers sooner, they would have likely prevented the collision. The court
denied the motion and this timely appeal followed.
¶9 Originally we issued a memorandum decision affirming
summary judgment on the alleged negligence of ADOT and DPS officers.
In a separate opinion, we held that Harianto’s claims against the DPS
dispatchers for negligently mishandling the emergency calls were
precluded based on statutory qualified immunity, A.R.S. § 12-820.02(A)(1).
Harianto petitioned for review in the supreme court. Addressing
dispatcher liability, in its response the State asserted for the first time that
Harianto’s claims against DPS dispatchers were also precluded by A.R.S. §
12-713. The supreme court granted review, vacated the opinion, and
directed us to reconsider our decision in light of that statute. We issued an
order withdrawing the memorandum decision and the opinion, and we
directed the parties to submit supplemental briefing addressing A.R.S. § 12-
713.
DISCUSSION
¶10 We review the superior court’s grant of summary judgment
de novo, viewing the evidence and reasonable inferences in the light most
favorable to the non-moving party. Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11
(2011). Summary judgment is appropriate if “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). We will affirm the court’s disposition
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if we conclude it is correct for any reason. Hawkins v. State Dep’t of Econ.
Sec., 183 Ariz. 100, 103 (App. 1995).
A. Causation―ADOT
¶11 Harianto argues the superior court erred in granting
summary judgment because the State, through ADOT, was negligent in
failing to adopt wrong-way driver prevention measures, and its failure to
adopt such measures was a cause of the accident. To establish a claim of
negligence against ADOT based on its lack of policies and procedures,
Harianto was required to show: (1) the existence of a duty that required
conformity to a certain standard of care, (2) breach of that duty, (3) a causal
connection between the breach and injury, and (4) actual damages. Gipson
v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). Although not specifically addressed
by the superior court, we conclude on this record that causation is lacking
and thus we do not address the remaining elements of negligence.
¶12 Causation has two subparts: (1) actual or factual causation,
and (2) proximate or legal causation. Dupray v. JAI Dining Servs. (Phoenix),
Inc., 245 Ariz. 578, 583, ¶ 17 (App. 2018). Actual causation “exists if the
defendant’s act helped cause the final result and if that result would not
have happened without the defendant’s act.” Ontiveros v. Borak, 136 Ariz.
500, 505 (1983). This is true even if the negligent act contributed “only a
little” to the injury. Id. Proximate causation exists when the defendant’s
acts are a “substantial factor” in the injury. Barrett v. Harris, 207 Ariz. 374,
381, ¶ 26 (App. 2004). If the substantial factor test is met, actual causation
is sufficient to establish proximate cause unless an extraordinary
unforeseeable intervening event occurs. Dupray, 245 Ariz. at 583, ¶ 17.
Thus, the “proximate cause of an injury is that which, in a natural and
continuous sequence, unbroken by any efficient intervening cause,
produces an injury, and without which the injury would not have
occurred.” Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (1990)
(citation omitted).
¶13 Proximate cause is usually a jury question. McMurty v.
Weatherford Hotel, Inc., 231 Ariz. 244, 256, ¶ 38 (App. 2013). However,
“[s]heer speculation is insufficient to establish the necessary element of
proximate cause or to defeat summary judgment.” Badia v. City of Casa
Grande, 195 Ariz. 349, 357, ¶ 29 (App. 1999). This is especially so if parties
rely on conjectural or conclusory expert opinions. See id. at ¶ 30.
¶14 For example, in Grafitti-Valenzuela ex rel. Grafitti v. City of
Phoenix, 216 Ariz. 454 (App. 2007), the plaintiff was abducted from a city
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bus stop and sexually assaulted. Id. at 456, ¶ 2. Plaintiff sued on the theory
that the city negligently failed to provide protective shelter and proper
lighting at the bus stop. Id. at 459, ¶ 15. The plaintiff’s expert opined that
if the city had taken such action, the plaintiff would not have been
abducted. Id. at 461, ¶ 25. We rejected this opinion as speculative, finding
“no basis in the facts” to infer that the plaintiff’s injuries could have been
prevented by such measures. Id. at ¶ 26. We therefore affirmed the superior
court’s grant of summary judgment to the city. Id. at 456, ¶ 1.
¶15 Harianto submitted expert opinion evidence from Dr. Robert
Bleyl (“Bleyl”), a traffic engineer, who asserted that if ADOT would have
undertaken more robust wrong-way driver mitigation efforts, it is likely the
accident would have been avoided. Bleyl, however, did not base his
opinion on the facts and circumstances of this case, but rather on
conclusions drawn from general statistics and evidence from other states,
particularly California. He opined that because California had adopted
wrong-way countermeasures and experienced a decrease in the number of
wrong-way driving incidents, then the same would likely be true in
Arizona. Bleyl did not analyze any particular stretch of roadway connected
with the accident in evaluating whether ADOT was liable. Indeed, nothing
in Bleyl’s testimony indicates that Horan could have been stopped by
warning signs or other measures because it is unclear how, why, or where
Horan began driving the wrong direction. It is also unclear whether Horan
was even lucid during the incident and capable of understanding and
complying with any such warnings. Bleyl’s unsupported opinion does not
provide any reasonable basis to infer that Horan entered the roadway and
drove the wrong way because the State failed to adopt and implement
further measures to prevent wrong-way driving in general.
¶16 In sum, Bleyl’s testimony is merely speculative and therefore
legally insufficient to create a material question of fact as to whether
ADOT’s efforts, or the lack thereof, were a substantial factor in causing
Harianto’s injuries. See Grafitti, 216 Ariz. at 460, ¶¶ 20–21; Shaner v. Tucson
Airport Auth., Inc., 117 Ariz. 444, 447–48 (App. 1997) (finding that when
causation was based on a chain of inferences only, “the jury would be left
to sheer speculation on the issue”); cf. Badia, 195 Ariz. at 357, ¶¶ 29–30
(“Expert opinions, without more, do not necessarily render a plaintiff’s
allegations of gross negligence triable issues of fact. That is particularly so
when, as here, the expert’s opinions on the issues of . . . causation are largely
conjectural and conclusory.”). A reasonable jury could not infer that
ADOT’s actions were the cause of the accident. Accordingly, we need not
address whether Horan’s driving was a superseding cause that would also
relieve the State of liability. See Grafitti, 216 Ariz. at 462, ¶ 29.
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¶17 The superior court properly granted summary judgment on
Harianto’s claim that ADOT was negligent in failing to take reasonable
measures to prevent wrong-way driving accidents.2
B. Statutory Qualified Immunity―DPS Dispatchers
¶18 Questions of statutory interpretation, including the
applicability of qualified immunity, are subject to this court’s de novo
review. Smyser v. City of Peoria, 215 Ariz. 428, 432, ¶ 8 (App. 2007). Judicial
construction of governmental immunity statutes “should be restrained and
narrow.” Fidelity Sec. Life Ins. Co. v. State, Dep’t of Ins., 191 Ariz. 222, 225,
¶ 7 (1998). Thus, governmental liability is presumed unless an exception
clearly applies. See Doe ex rel. Doe v. State, 200 Ariz. 174, 176, ¶ 4 (2001).
¶19 Implicitly relying on A.R.S. § 12-820.02(A)(1), the superior
court denied Harianto’s claim that the 911 dispatchers were negligent. In
his original briefing on appeal, Harianto argued that qualified immunity
under § 12-820.02(A)(1) does not apply to a dispatcher under any
circumstances, and because Dispatcher Zeiher delayed in contacting the
Flagstaff district, she was negligent, making the State liable. Harianto’s
argument was based on Hutcherson v. City of Phoenix (Hutcherson I), 188
Ariz. 183 (App. 1996), vacated, 192 Ariz. 51 (1998), which held that § 12-
820.02 “does not grant qualified immunity to 911 operators.” Hutcherson I,
188 Ariz. at 190. That holding, however, has been superseded by § 12-713,
which at the time of the accident provided as follows:
A person, private entity or public entity or any of its
employees that is involved in developing, operating,
implementing, maintaining or participating in a 911
emergency telephone system or similar emergency dispatch
system or a public safety radio communications network or
similar network is not liable for civil damages that result from
an act or omission in connection with developing, operating,
2 Because Harianto failed to establish causation relating to ADOT’s
alleged negligence, we need not address whether absolute immunity under
A.R.S. § 12-820.01(A)(2) bars that claim. To the extent Harianto appeals the
superior court’s determination that absolute immunity applied to DPS for
its wrong-way prevention policies and procedures, that argument is
waived. Although the argument is briefly mentioned in Harianto’s opening
brief, it is not developed. See ARCAP 13(a)(7). More importantly, the reply
brief confirms that Harianto “do[es] not, in this appeal, challenge DPS’s
failure to have specific wrong way driving policies/procedures.”
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implementing, maintaining or participating in a 911
emergency telephone system or public safety radio
communications network or a similar emergency system or
network unless the person or entity acted knowingly or had reason
to know the facts that would lead a reasonable person to realize that
the person’s or entity’s act or failure to act not only created an
unreasonable risk of bodily injury to others, but also involved a high
probability that substantial harm would result.
A.R.S. § 12-713 (2014) (emphasis added).3
¶20 The State argues that § 12-820.02(A)(1) applies regardless of §
12-713. But our supreme court directed us to reconsider our decision in
light of § 12-713. The issue before us, then, is whether Harianto’s negligence
claims against DPS relating to Zeiher are precluded by § 12-713, and
whether he can establish triable issues of fact that Zeiher was grossly
negligent.
¶21 Harianto does not dispute that A.R.S. § 12-713 precludes any
claim that DPS or its dispatchers were negligent in handling the 911 calls
leading up to the accident. Instead, to overcome the presumption of
statutory immunity, Harianto is required to present evidence showing
Zeiher was grossly negligent in her handling of the emergency. See Walls v.
Ariz. Dept. of Pub. Safety, 170 Ariz. 591, 595 (App. 1991).
¶22 To establish gross negligence, a plaintiff must first prove the
four elements of ordinary negligence: duty, breach, causation, and
damages. See Gipson, 214 Ariz. at 143, ¶ 9. To establish gross (or “wanton”)
negligence, a plaintiff must also show the defendant knew or had reason to
know that an action or lack thereof “would lead a reasonable person to
realize that his conduct not only creates an unreasonable risk of bodily
harm to others but also involves a high probability that substantial harm
will result.” Walls, 170 Ariz. at 595.
¶23 The definition of gross negligence “is, at best, inexact.”
Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 535 n.4 (2003).
3 The parties agree this version of the statute applies here. In 2015, the
legislature amended A.R.S. § 12-713. 2015 Ariz. Sess. Laws, ch. 239, § 2 (1st
Reg. Sess.) (H.B. 2205). Though still consistent with the version in effect at
the time of the accident, the 2015 version states that the presumption of
immunity may be overcome only upon a showing of “wanton or wilful
misconduct.” Id.
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“[N]egligence suggests a failure to measure up to the conduct of a
reasonable person.” Id. (internal quotation marks and citations omitted).
In contrast, gross negligence “generally signifies more than ordinary
inadvertence or inattention, but less perhaps than conscious indifference to
the consequences, which falls closer to the recklessness standard that
usually involves a conscious disregard of a risk.” Noriega v. Town of Miami,
243 Ariz. 320, 328, ¶ 36 (App. 2017) (internal quotation marks and citations
omitted).
¶24 Generally, whether gross negligence occurred is a question of
fact for a jury to determine. Id. at 329, ¶ 37. “In order to present such an
issue to the jury, gross negligence need not be established conclusively, but
the evidence on the issue must be more than slight and may not border on
conjecture.” Walls, 170 Ariz. at 595. Summary judgment is appropriate if
“no evidence is introduced that would lead a reasonable person to find
gross negligence.” Id.¶25 Initially, Harianto’s liability claim against DPS centered on
whether Schmidt was grossly negligent, which we address below. Infra
¶¶ 33–35. Much later in the litigation, Harianto alleged DPS was negligent
due to Dispatcher Zeiher’s negligent acts or omissions. Harianto supported
the allegation with the opinions of Rob Robinson, a police practices expert.
¶26 In his deposition, which was taken before Schmidt or Zeiher
were deposed, Robinson explained:
[I]n listening to the dispatch tapes, I noticed neither the
dispatcher nor Sergeant Sharp ever made any mention to
contact officers located north, in the Cordes Junction, in the
Sunset Point, maybe Prescott Valley, I believe Mayer is right
there ― isn’t Mayer right next or just before Prescott Valley,
right at the freeway ― to see if there are any offìcers up there
that could have start heading south or conduct a traffic break.
I think if they would have ― it’s 14 miles from Cordes
Junction down to Sunset Point.
So the pursuit ― or the incident lasted . . . 30 miles.
So let’s just say he was doing about 60 miles an hour, which
was about what most people were reporting, 50 to 55.
Basically they had 16 minutes, and I’m just doing very rough
math, 16 minutes of time to get a hold of the officer, have him
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have enough time to be prepared to get into his car or do what
he does before he gets in his car, and then proceed to [I-]17 to
conduct a traffic break.
I don’t know what that time frame was in as much as how
long they took to notify the officer up in Cordes Junction, but
I . . . can’t assume. That will be up to you guys to do the math
on that. But I think that’s a question that would need to be
answered to see exactly what the procedure was and if there
was a policy for calling ahead, especially to a . . . resident
officer, north of Table Mesa, north of Sunset Point.
¶27 In his supplemental declaration, Robinson opined in part:
54. Police dispatchers are emergency communications
professionals who are called upon to ensure the successful
transmission of information from callers to responding police
personnel. Their work involves providing accurate and
timely information to police officers and dispatching the
appropriate personnel to incidents and emergencies through
a two-way communications system within a city or municipal
police department.
55. At no time during this incident did the dispatchers
attempt to coordinate or direct the responding police officers’
response. Instead, they simply let the officers respond to
locations as they chose creating a “hit and miss” strategy.
Using a “hit and miss” strategy to capture a WWD certainly
does not fall within accepted law enforcement policy,
procedure and practice, and does nothing but create chaos
and uncertainty for those officers involved. It also places the
community at risk since there are no set of guidelines or plan
to follow to ensure avenues of escape are covered, traffic is
stopped at intersections, arrest and cover teams are assigned,
perimeters are established. It is imperative for dispatchers to
be trained and have policy on how to direct DPS officers to
terminate a WWD. Without this leadership and direction,
DPS officers simply responded in an uncontrolled and chaotic
manner placing others at risk of death or serious injury to
others.
56. During her deposition, DPS Police Call Taker Nancy Jo
Zeiher (who was a dispatcher until summer of 2017) could not
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recall receiving any type of training how to direct officers
during WWD incidents.
57. It is a matter of record that the DPS WWD Committee
recommended in 2013 that DPS implement a general order
and specific training for its officers regarding wrong-way
drivers. It is reasonable that such training would incorporate
the countermeasures spelled out in the Report SIR-12/01/15.
Had WWD training been in place, responding DPS officers
would have been aware of opportunities to terminate this
WWD with very little opportunity of injury to others. They
include:
1. Although former dispatcher Nancy Jo Zeiher
testified appropriately that wrong-way drivers are a priority,
(Zeiher p. 22 at 18-20; p. 23 at 4-5), she also testified that in this
instance, she:
a. Did not determine where available officers were
located; (p. 82 at 6-15)
b. Did not establish or monitor communications with
the officers that were located; (p. 68 at 19 – p. 69 at 11; p. 71 at
8-13), and
c. Did not coordinate the responses among and
between the officers that were located. (p. 73 at 15 – p. 74 at 6;
p. 74 at 23 – p. 75 at 14.)
2. Contact with Officer Schmidt: Officer Schmidt was
notified of the wrong-way driver by dispatch at 4:22 a.m. The
collision occurred at 4:27 a.m. If he had been timely notified,
when dispatch first learned of the wrong-way driver at 4:05
a.m., Officer Schmidt would have had 17 minutes (or more)
in which to set up a traffic break, stop sticks, or other
measures to either stop Horan or to stop and thus protect
southbound traffic. Unfortunately, DPS had no policies on
notification of adjacent dispatch areas.
¶28 Whether Zeiher was grossly negligent in her handling of the
dispatch calls was not presented to the superior court. As noted by
Harianto in his supplemental brief, in the superior court and on appeal
before the supreme court’s remand order, the parties, the superior court,
and this court focused on whether Hutcherson I was applicable; A.R.S. § 12-
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713 was never addressed. The State contends it had no reason to raise § 12-
713 in the superior court as an immunity defense. We disagree. As the State
acknowledges in its answering brief, the State was alerted no later than
September 2017 that Harianto had alleged Zeiher was negligent in handling
the emergency calls. The superior court issued its summary judgment
ruling in May 2018. If the State had raised § 12-713 within a reasonable time
after learning of Harianto’s theory that Zeiher was negligent, the only
viable issue remaining would have been whether she was grossly negligent.
¶29 Instead, because Harianto took the position that Hutcherson I
concluded there was no statutory qualified immunity for a dispatcher, only
simple negligence was at issue to determine whether the State could be held
liable for Zeiher’s acts or omissions. In reality, however, the legislature
adopted § 12-713 the following year after Hutcherson I was decided. But
that does not change the fact that the State did not mention § 12-713 until it
filed its response to Harianto’s petition for review in the supreme court.
¶30 The State also makes the point that Harianto never alleged a
gross negligence claim in the superior court. But he was not required to
allege gross negligence under § 12-713 unless the State asserted that his
claim was precluded by that statute. See Allen v. Town of Prescott Valley, 244
Ariz. 288, 292, ¶ 14 (App. 2018) (rejecting town’s contention that plaintiff
waived his right to recover under a gross negligence theory by not alleging
it in his complaint or referencing it in his disclosure statement because “the
issue of qualified immunity under § 33–1551 was not implicated until the
Town asserted it in its answer”). Unlike Harianto’s claim that DPS was
grossly negligent based on Schmidt’s conduct, which the State placed at
issue in the summary judgment proceedings, Harianto’s claim relating to
Zeiher was based solely on negligence.
¶31 The State further contends that Harianto cannot establish the
standard of care or prove causation. At this stage of the litigation, and
because the superior court has not addressed these issues, we cannot
conclude as a matter of law that Zeiher was not grossly negligent. These
matters, and the scope of any additional proceedings to evaluate the State’s
immunity defense under § 12-713, must be addressed on remand.4 And to
4 The State moved to exclude Robinson from testifying as an expert
witness, asserting in part untimely disclosure and inadmissibility of his
opinions under Arizona Rule of Evidence 702. The superior court denied
the State’s motion. The State also moved to strike Robinson’s supplemental
declaration, asserting there was no good cause for his untimely filing. In its
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the extent Harianto claims DPS was negligent in failing to train its
dispatchers, that claim is precluded by § 12-713 unless he can show DPS’s
inaction was grossly negligent.
¶32 Given this unique procedural posture, we conclude the case
must be remanded to allow the superior court to determine in the first
instance whether Harianto can establish that either DPS personnel (due to
lack of training) or Zeiher knew or had reason to know that their acts or
omissions would lead a reasonable person to realize his or her conduct
created an unreasonable risk of bodily harm to others and involved a high
probability that substantial harm would result. See A.R.S. § 12-713; Walls,
170 Ariz. at 595. In doing so, we express no opinion whether Harianto can
meet that burden.
C. Statutory Qualified Immunity―DPS Officers
¶33 The superior court found that qualified immunity under
A.R.S. § 12-820.02 precluded Harianto’s claims that the DPS officers
involved in the wrong-way emergency were negligent. Section 12-820.02
states:
A. Unless a public employee acting within the scope of the
public employee’s employment intended to cause injury or
was grossly negligent, neither a public entity nor a public
employee is liable for:
1. The failure to make an arrest or the failure to retain an
arrested person in custody.
As previously determined by this court, “failure to make an arrest” includes
the “failure to make an investigatory stop which may or may not lead to an
arrest.” Walls, 170 Ariz. at 595.
¶34 Despite the availability of statutory qualified immunity,
public employees are not shielded from liability if their actions are intended
to cause injury or are grossly negligent. A.R.S. § 12-820.02(A). Harianto
does not challenge the superior court’s ruling that qualified immunity
applies to the actions of the individual DPS officers in responding to the
wrong-way emergency under Walls. Instead, Harianto argues qualified
immunity does not apply here because Trooper Schmidt was grossly
negligent in responding to the Harianto accident. We are not persuaded
summary judgment ruling, the court assumed Robinson’s expert opinions
were admissible and denied the motion to strike as moot.
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any genuine disputes of material fact exist as to whether Schmidt was
grossly negligent.
¶35 Harianto argues that if Schmidt had sped towards the wrong-
way driver, rather than immediately initiating a traffic break, the accident
would not have occurred. The record indicates that when Schmidt received
the call at 4:22 a.m. regarding Horan’s wrong-way driving, he began
initiating a traffic break in compliance with DPS’s Highway Operations
Manual. He formulated a plan to create a roadblock with his patrol car to
stop Horan once the traffic break was complete. Nothing about Schmidt’s
response suggests gross negligence, particularly when the accident
occurred about five minutes after he was notified of the emergency. The
superior court did not err in concluding the evidence cannot support a
finding that DPS officers were grossly negligent.
CONCLUSION
¶36 We conclude as a matter of law that Harianto failed to
establish that (1) ADOT’s alleged negligence proximately caused the
injuries suffered by the occupants in the minivan, and (2) the alleged
operational negligence of DPS officers is precluded under A.R.S. § 12-
820.02(A). We therefore affirm dismissal of those claims. We vacate,
however, the portion of the court’s order addressing the alleged operational
negligence of DPS dispatchers and remand for reconsideration of whether
Harianto can prove the dispatchers were grossly negligent under A.R.S.
§ 12-713.
AMY M. WOOD • Clerk of the Court
FILED: AA
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