Harianto v. State ( 2020 )

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 9-24-2020
Appeal from the Superior Court in Maricopa County
No. CV 2015-051925
The Honorable John R. Hannah, Jr., Judge
AFFIRMED
COUNSEL
Zachar Law Firm, Phoenix
By Christopher J. Zachar
Co-Counsel for Plaintiffs/Appellants
The Leader Law Firm, Tucson
By John P. Leader
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
Co-Counsel for Defendants/Appellees
OPINION
Judge Michael J. Brown delivered the opinion 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 in Yavapai County. Harianto sued 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. The issue presented here is whether DPS dispatchers
could properly claim statutory qualified immunity. We address other
issues raised by Harianto in a separate memorandum decision. For the
following reasons, we affirm.
BACKGROUND
¶2 The relevant facts are undisputed. Alan Horan (“Horan”)
was spotted before dawn one morning 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 and
staring straight ahead as if in a trance, 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,
which was automatically classified as the “highest priority-type call.”1
1 While Harianto at times mentions “dispatchers,” his briefing focuses
almost exclusively on the alleged negligence of Zeiher, who was primarily
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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 district, which in turn
notified DPS troopers in Yavapai County about Horan. Trooper Schmidt,
who was driving south on I-17 several miles north of Horan’s last known
location, received the call about Horan from Flagstaff dispatch at 4:22 a.m.
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 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 may have been
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. Following substantial discovery, the
State moved for summary judgment, asserting statutory qualified
immunity precluded liability for the alleged negligence of DPS in handling
the emergency. 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
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 because Harianto has not alleged how they were negligent.
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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.
DISCUSSION
¶7 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). Questions of statutory interpretation,
including the applicability of qualified immunity, also are subject to 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.” Fid. Sec. Life Ins. Co. v. State Dep’t of Ins., 191 Ariz.
222, 225, ¶ 7 (1998). Governmental liability is presumed unless immunity
clearly applies. See Doe ex rel. Doe v. State, 200 Ariz. 174, 176, ¶ 4 (2001).
¶8 Citing A.R.S. § 12-820.02, the superior court found that
qualified immunity precluded Harianto’s claim relating to dispatcher
negligence. That statute provides:
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.
A.R.S. § 12-820.02. We have previously interpreted subsection (A)(1) to
include the “failure to make an investigatory stop which may or may not
lead to an arrest.” Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 595 (App.
1991).
¶9 Harianto does not contend that Dispatcher Zeiher intended to
cause injury or was grossly negligent. Rather, he argues qualified
immunity under § 12-820.02(A)(1) does not apply to a dispatcher under any
circumstances, and because Zeiher delayed in contacting the Flagstaff
district, she was negligent, making the State liable. Harianto’s argument is
based on Hutcherson v. City of Phoenix (Hutcherson I), 188 Ariz. 183 (App.
1996), vacated, 192 Ariz. 51 (1998). In that case, this court held that
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§ 12-820.02 “does not grant qualified immunity to 911 operators.” Id. at 190.
On review, our supreme court vacated Hutcherson I, but Harianto argues
the supreme court’s opinion was meant to vacate only “unrelated portions
of this Court’s Hutcherson [I] opinion.” See Hutcherson v. City of Phoenix
(Hutcherson II), 192 Ariz. 51 (1998).
¶10 We recognize that in Hutcherson II, the supreme court
accepted review of only one issue, which did not involve the 911
dispatcher’s alleged negligence. See id. at 53, ¶ 12. But the supreme court’s
opinion plainly states, “we vacate the opinion of the court of appeals.” Id.
at 57, ¶ 37. And a later decision from this court rejected the notion that
Hutcherson I was controlling or even relevant in assessing 911 dispatcher
immunity, explaining that because the supreme court vacated the opinion,
it has no precedential value. Wertheim v. Pima Cnty., 211 Ariz. 422, 426, ¶ 17
n.2 (App. 2005) (citing Wetherill v. Basham, 197 Ariz. 198 (App. 2000)).
¶11 We must acknowledge, however, that courts have not been
consistent in how they interpret and apply vacated opinions. For example,
other than Wertheim’s explicit rejection of the notion that Hutcherson I has
any continuing validity, other courts have given that case varied treatment.
See, e.g., Spooner v. City of Phoenix, 246 Ariz. 119, 124, ¶ 9 n.4 (App. 2018)
(noting that Hutcherson I was “reversed on other grounds”); Smyser v. City of
Peoria, 215 Ariz. 428, 436, ¶ 24 (App. 2007) (citing Hutcherson I without
reference to any subsequent history); Ogden v. J.M. Steel Erecting, Inc., 201
Ariz. 32, 37, ¶ 23 (App. 2001) (recognizing Hutcherson I was vacated but
relying on its analysis of fault allocation); Hulstedt v. City of Scottsdale, 884
F. Supp. 2d 972, 1017 (D. Ariz. 2012) (citing Hutcherson I as “vacated on other
grounds,” and noting that 911 dispatchers can be held liable for mere
negligence).
¶12 But even if we were inclined to dive into the thorny question
of whether vacated opinions may be appropriately cited for some type of
persuasive value, whether by the parties or a court, we are bound by our
supreme court’s instruction not to cite vacated opinions. See Stroud v. Dorr-
Oliver, Inc., 112 Ariz. 403, 411, n.2 (1975) (“Once an opinion of the Court of
Appeals has been vacated by this court, it is of no force and effect and is not
authority.”); State v. Smyers, 207 Ariz. 314, 318, ¶ 15 n.4 (2004) (“The courts
of this state are bound by the decisions of this court and do not have the
authority to modify or disregard this court’s rulings.”); cf. Michael D.
Moberly, This Is Unprecedented: Examining the Impact of Vacated State
Appellate Court Opinions, 13 J. App. Prac. & Process 231, 246 (2012) (stating
that Stroud has not “prevented litigants from citing vacated Arizona
appellate court opinions in support of their legal arguments or Arizona
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courts from relying on those opinions when deciding cases”). Further, even
assuming this situation might be viewed differently, we conclude that more
recent authority has greater persuasive value than Hutcherson I on the
subject of 911 dispatcher liability.
¶13 In Greenwood v. State, 217 Ariz. 438, 442, ¶ 15 (App. 2008), we
addressed whether qualified immunity extended to the activities of DPS
recordkeeping employees under § 12-820.02(A)(1). A woman died in a car
accident caused by a man who had a lengthy criminal record, including
several driving offenses. Id. at 440, ¶¶ 2–3. Her mother and an injured
passenger sued the State, alleging it failed to exercise reasonable care in
maintaining and disseminating the man’s criminal information, and had
the recordkeeping been done properly, he would have been incarcerated at
the time of the accident. Id. at 443, ¶ 17. The plaintiffs argued that qualified
immunity under § 12-820.02(A)(1) did not apply because their allegations
related only to negligent recordkeeping, not the failure to arrest or retain in
custody the man who caused the accident. Id. at 443, ¶ 15. We rejected the
argument, holding that although recordkeeping activities are not included
in the statute’s plain language, the “essence” of the claim was a failure to
arrest or retain. Id. at 444, ¶ 22. We reasoned that the form of the plaintiffs’
allegations need not mimic the statute to trigger its applicability; otherwise,
“it would encourage plaintiffs to purposely plead their claims to avoid the
application of the statute.” Id. at 444–45, ¶ 22.
¶14 To determine the essence of Harianto’s allegations against
Zeiher, we look to Harianto’s amended complaint. But the allegations in
the amended complaint, even liberally construed, do not address his theory
of dispatcher liability. Instead, over the State’s objections, Harianto’s
allegations against Zeiher were raised much later in the litigation. A
supplemental disclosure statement included these opinions from
Mr. Robinson, a police practices expert:
Mr. Robinson is expected to testify that Flagstaff dispatchers
had an officer, Officer Schmidt, located in the immediate area
of [Horan] when contacted. That had Officer Schmidt been
contacted at 4:05 a.m., he would have had 17 minutes to set
up a traffic break, stop sticks, Class C Roadblock or other
proactive measures to, 1) stop [Horan] , or 2) stop southbound
traffic on I-17 which would have included the Harianto’s
vehicle.
....
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Mr. Robinson is expected to testify that it was neglectful for
Phoenix DPS dispatchers to wait 17 minutes before contacting
DPS Flagstaff dispatchers and/or Officer Schmidt as [Horan]
was headed directly towards him while travelling
northbound on I-17. That communication between
neighboring dispatch areas is paramount to ensure public
safety.
In his motion for reconsideration, Harianto stated in part that Zeiher
“negligently handled this incident by not timely contacting Officer
Schmidt, thus delaying his arrival, allowing the subject collision to occur.”
¶15 Consistent in these allegations is the theory that had Zeiher
contacted Schmidt earlier, he would have been able to stop Horan before
the collision by setting up a traffic break, using stop sticks, implementing a
roadblock, or other proactive measures. The purpose of those measures
would have been to stop the car from moving any further in the wrong
direction. Thus, the essence of Harianto’s allegations is that Zeiher’s delay
in contacting Schmidt resulted in a failure to prevent the collision by
stopping or arresting Horan before it occurred. And an alleged failure to
stop or arrest plainly falls under § 12-802.02(A)(1), meaning Zeiher has
qualified immunity against Harianto’s allegations that she negligently
handled the emergency. See Walls, 170 Ariz. at 595.
¶16 Further, just as Greenwood determined there was no
meaningful distinction between the immediate activities of law
enforcement officers and the recordkeeping duties that underlay law
enforcement activities, the duties of 911 dispatchers are integrated into law
enforcement investigation and arrest processes—and certainly to a much
greater extent than recordkeepers. See Greenwood, 217 Ariz. at 444, ¶ 21.
The immediate action required by officers to make an arrest or an
investigatory stop is often based on the actions of 911 dispatchers. Indeed,
in this case, the officers received updates on the wrong-way driver based
on the information relayed from observers to dispatchers. Thus, consistent
with Greenwood and Wahl, qualified immunity protects Zeiher under § 12-
802.02(A)(1).
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CONCLUSION
¶17 Harianto’s claims against the DPS dispatchers for negligently
mishandling the emergency calls are precluded based on statutory
qualified immunity. We therefore affirm the superior court’s judgment.
AMY M. WOOD • Clerk of the Court
FILED: AA
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