Tamera Torres-Martinez v. United States , 639 F. App'x 471 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 27 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMERA TORRES-MARTINEZ, No. 14-15564
Plaintiff-Appellant, D.C. No. 4:11-cv-00519-DCB
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted April 14, 2016
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.
Tamera Torres-Martinez appeals the district court’s judgment awarding
Torres-Martinez $40,000 in damages for a January 2009 collision with a United
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
States postal truck that left Torres-Martinez injured. We affirm. Because the
parties are familiar with the history of the case, we need not recount it here.
The district court correctly applied Arizona law to conclude that the collision
did not cause Torres-Martinez’s continuing subjective complaints of pain. Under
Arizona law, the elements of a negligence claim are “the existence of a duty owed,
a breach of that duty, and damages causally related to such breach.” Smethers v.
Campion, 108 P.3d 946, 949 (Ariz. Ct. App. 2005) (emphasis added). Thus,
Torres-Martinez had the burden to prove that causal relationship by the
preponderance standard, and the district court properly applied that standard in
determining that certain damages were not caused by the accident. See Godwin v.
Farmers Ins. Co. of Am., 631 P.2d 571, 573 (Ariz. Ct. App. 1981), Gipson v.
Kasey, 150 P.3d 228, 230 (Ariz. 2007).
Torres-Martinez argues that the “reasonable certainty” standard, not the
preponderance of evidence standard, should apply. However, the reasonable
certainty standard (which, in Arizona at least, requires less proof than the
preponderance standard) only applies to the extent of damages awarded, not to the
question of damage causation. As the commentary to Restatement (Second) of
Torts § 912 (1979), which discusses the “reasonable certainty” test (and which has
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been favorably cited by Arizona courts, see, e.g., Felder v. Physiotherapy Assocs.,
158 P.3d 877, 885 (Ariz. Ct. App. 2007)) provides:
In all of these cases the recovery of damages for a particular harm is
dependent upon proof that the harm occurred as the result of the
tortious conduct, and normally the plaintiff can recover damages for
the harm only by proving this with the same degree of certainty as that
required in proving the existence of the cause of action.
Restatement (Second) of Torts § 912 cmt. a (1979).
The purpose of the “reasonable certainty” test is to relieve the plaintiff of
proving damages with absolute certainty, not to relieve the plaintiff of proving
causation by a preponderance of the evidence. See id. Thus, the district court
correctly applied Arizona law in its causation findings.
The district court did not clearly err in its consideration of expert testimony.
The district court assessed and resolved conflicting medical testimony on the
question whether the collision caused Torres-Martinez’s continuing complaints of
pain. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (“Where
there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.”).
AFFIRMED.
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