Torres v. Maricopa

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HILDA TORRES, et al., Plaintiffs/Appellants,

v.

MARICOPA COUNTY, et al., Defendants/Appellees.

No. 1 CA-CV 23-0768
FILED 10-08-2024

Appeal from the Superior Court in Maricopa County
No. CV2020-004538
The Honorable Scott A. Blaney, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office PC, Phoenix
By David L. Abney (argued)
Co-Counsel for Plaintiffs/Appellants

Knapp & Roberts PC, Scottsdale
By Craig A. Knapp, David S. Friedman
Co-Counsel for Plaintiffs/Appellants

Maricopa County Attorney's Office, Phoenix
By Pamela A. Hostallero, Charles Trullinger, Sean M. Moore (argued)
Counsel for Defendants/Appellees
 TORRES, et al. v. MARICOPA, et al,
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Andrew M. Jacobs joined.

C R U Z, Judge:

¶1 Plaintiffs Hilda and Ricardo Torres,1 surviving parents of
Juan Torres, appeal the grant of summary judgment in this wrongful death
case in favor of defendants deputy sheriffs Wilmer Tinoco and Anthony
Kirkland, Maricopa County (“the County”), and Maricopa County Sheriff
Paul Penzone. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY2

¶2 Shortly after midnight on April 13, 2019, deputies Tinoco and
Kirkland responded to a domestic disturbance call. The caller reported that
Juan was trying to hurt his family, was not mentally okay, and could be
armed with a hammer.

¶3 After arriving at the Torres’ property in Buckeye, Arizona, the
deputies spoke with family members. Juan suddenly appeared and
repeatedly shouted “shoot me!” while erratically waving a hammer and
wrench. The deputies repeatedly ordered Juan to get on the ground and
drop the hammer and wrench. Juan ignored their commands. The deputies
and Juan’s family repeatedly told Juan that he was not in any trouble and
wanted to help him. After a few minutes, Juan walked away.

¶4 The deputies began discussing applying “less lethal”
measures and called the fire department to respond so they could assist in
helping Juan once they were able to disarm him. Juan reemerged and again

1 Although Hilda and Ricardo Torres are both named plaintiffs in this
case, a wrongful death action in Arizona involves only one statutory
plaintiff brought for and on behalf of the statutory beneficiaries. See Ariz.
Rev. Stat. (“A.R.S.”) § 12-612; Wilmot v. Wilmot, 203 Ariz. 565, 569, ¶ 11
(2002); Begay v. City of Tucson, 148 Ariz. 505, 508 (1986); Nunez v. Nunez, 25
Ariz. App. 558, 562 (1976).

2 Appellants admit the factual allegations as cited herein.

2
 TORRES, et al. v. MARICOPA, et al,
Decision of the Court

erratically waved the wrench and hammer. The deputies engaged Juan in
conversation, but Juan continued to yell at them to shoot him and refused
their commands to put down the wrench and hammer. Juan suddenly
moved towards the deputies, lunged at Deputy Tinoco, screamed, “die,
motherfucker!” and charged forward as he hurled the wrench at Deputy
Tinoco. Deputy Tinoco turned and the wrench struck him on his upper
back. Juan still had the hammer in his hand and was facing Deputy
Kirkland. Both deputies fired their weapons at Juan from about fifteen feet,
striking him multiple times. The deputies rendered emergency aid until
medical personnel arrived, but Juan died shortly after. Approximately four
minutes elapsed from the time the deputies arrived on the scene to the
shooting.

¶5 Plaintiffs sued defendants for wrongful death damages. They
alleged theories of negligence, negligent training and supervision,
negligent infliction of emotional distress, negligence per se, and intentional
infliction of emotional distress. Juan’s parents alleged the County and
Penzone were negligent in hiring, training, and supervising the deputies.
They also alleged the County was vicariously liable for Penzone and the
deputies’ conduct and that Penzone was vicariously liable for the deputies’
actions. The superior court dismissed the vicarious liability claims against
the County.3

¶6 Plaintiffs then filed an amended complaint, which omitted the
County as a defendant, omitted the negligence per se claim, retained the
theories alleged in the original complaint and added a claim for battery.
The amended complaint alleged the deputies’ pre-shooting conduct
unnecessarily escalated the situation in which Juan may have been
attempting to commit “suicide by cop.” It alleged the deputies’ negligent
conduct “proximately caused or contributed to causing” Juan’s intentional
death and that Penzone was vicariously liable for the acts and omissions of
the deputies. The amended complaint also alleged Penzone was negligent
in hiring, training, and supervising the deputies.

¶7 After disclosures and some discovery, the defendants moved
for summary judgment on all counts. After full briefing and oral argument,

3 See Fridena v. Maricopa County, 18 Ariz. App. 527, 530-31 (1972)
(noting that counties are generally not liable for the acts of elected officials
whose duties are imposed by law); Hernandez v. Maricopa County, 138 Ariz.
143, 146 (App. 1983) (holding that a county cannot be held vicariously liable
for the alleged negligence of a justice of the peace and his staff, whose duties
are imposed by law not the county, the county having no right of control).

3
 TORRES, et al. v. MARICOPA, et al,
Decision of the Court

the superior court granted summary judgment in favor of defendants on all
counts. The court found that the damages plaintiffs sought arose from
Juan’s death, which occurred as the direct result of the intentional act of
shooting while Juan was physically attacking the deputies. As such, the
court found that plaintiffs could not recover damages through any
negligence-based claims, citing Ryan v. Napier, 245 Ariz. 54 (2018). Because
plaintiffs could not establish negligence claims against the deputies
individually, the court then found plaintiffs could not maintain their
vicarious liability claims against the deputies’ employer.

¶8 The superior court also found that defendants established by
a preponderance of the evidence that the use of deadly force was justified
under A.R.S. § 13-410(C) and thus were immune from civil liability for
battery under A.R.S. § 13-413. Finally, the court found that the deputies’
conduct was not so extreme and outrageous as to state a claim for
intentional infliction of emotional distress.

¶9 The court entered final judgment and this timely appeal
followed. We have jurisdiction. A.R.S. § 12-2101(A)(1).

DISCUSSION4

¶10 We review de novo a grant of summary judgment to
determine if the superior court properly applied the law and whether any
genuine issues of material facts exist. Ariz. R. Civ. P. 56(a); Dinsmoor v. City
of Phoenix, 251 Ariz. 370, 373, ¶ 13 (2021). We view the record in the light
most favorable to the nonmoving party. Dinsmoor, 251 Ariz. at 373, ¶ 13.

I. Negligence-Based Claims

¶11 Appellants argue that under Ryan they may assert negligence
claims for the deputies’ pre-shooting negligent conduct.

¶12 In Arizona, negligence and intentional torts, such as battery,
are mutually exclusive grounds for liability for a given act because the
elements required to prove the respective claims are different. Ryan, 245
Ariz. at 59-60, ¶¶ 16-20 (noting the “fundamental distinction between
negligence and an intentional tort is whether the consequences of the act or
omission are unintentional or intentional”). Ryan, a negligence case
involving the intentional release of a police dog, rejected negligent-use-of-
intentionally-inflicted-force as a cognizable claim and concluded that the

4 Our resolution of this case obviates the need to address any
argument about qualified immunity or gross negligence.

4
 TORRES, et al. v. MARICOPA, et al,
Decision of the Court

defendant deputy and county sheriff could not be liable in negligence when
the facts only supported a claim for intentional battery. Id. at 60-62, ¶¶ 21,
22, 32. “[I]f a defendant acts with the intent to cause a harmful or offensive
touching (battery),” said the Arizona Supreme Court in Ryan, “that same
act cannot constitute negligence.” Id. at 60, ¶ 20.

¶13 Appellants here do not dispute that the deputies intentionally
shot Juan. But they argue the deputies’ conduct can be separated into two
distinct phases: (1) pre-shooting negligent acts and omissions, which give
rise to their negligence claims, and (2) the later separate intentional
shooting, which gives rise to their battery claim. They argue that the
deputies’ negligent, pre-shooting mishandling of the domestic-violence call
set the stage for the later preventable intentional shooting and that
permitting a separate negligence claim for the pre-shooting conduct does
not run afoul of the principles set forth in Ryan.

¶14 Appellants rely on language in Ryan that permits plaintiffs to
plead negligence claims for conduct that is “independent of the intentional
use of force.” Id. at 62, ¶ 31. Seeking to carve out discrete acts of negligence
here, appellants rely on expert opinion that the deputies failed to: (1) defuse
and de-escalate the situation; (2) clear space to take cover or retreat; (3) wait
for backup; (4) wait for nearby K-9 units to arrive to control Juan; and (5)
control Juan with non-fatal means. But even if these alleged negligent acts
and omissions were true, they are not “independent of the intentional use
of force,” id., because they led directly to that intentional use of force. Ryan
thus cannot support plaintiffs’ claims here.

¶15 Ryan explicitly rejected the argument that an actor’s internal
evaluation about whether to use force and the decision to do so can by
themselves constitute negligence. Id. at 60-61, ¶ 22. The court explained
that the officer’s internal evaluation of whether to release the dog “and his
decision to do so was part and parcel of his intent to inflict harmful and
offensive contact.” Id. So it is here. The deputies’ decisions in this case
were part of their continuing choice about whether to use force. Thus, even
assuming they could be shown to be negligent, these decisions were
likewise “part and parcel” of their imminently-following intentional
infliction of physical harm. Ryan thus does not allow them to support a
negligence claim here.

¶16 Appellants provide no case law supporting their position that
Arizona permits a separate, actionable claim for negligent acts and
omissions that later contributed to a separately actionable intentional
battery. Their reliance on Garcia v. City of South Tucson, 131 Ariz. 315 (App.

5
 TORRES, et al. v. MARICOPA, et al,
Decision of the Court

1981) is misplaced. Garcia, which predates Ryan by decades, involved the
mistaken shooting of a police officer by another officer during an attempt
to flush out a lone gunman who was firing random shots from a residence.
Id. at 317. Garcia did not analyze the propriety of a negligence versus a
battery case; it addressed issues of the remedy of workmen’s compensation,
the applicability of the fireman’s rule, jury instructions, and the propriety
of a jury verdict, none of which are relevant here. Id.

¶17 Mendez v. County of Los Angeles, 897 F.3d 1067 (9th Cir. 2018)
also provides no support for appellants’ position. In Mendez, the Ninth
Circuit Court of Appeals held that the plaintiffs had an independent basis
under California negligence law to recover from deputy sheriffs who
unlawfully entered a structure, misperceived a threat posed by a BB gun,
and shot two people resulting in injury. Id. at 1071-1072. But the relevant
California negligence law considers “law enforcement personnel’s tactical
conduct and decisions preceding the use of deadly force [as] relevant
considerations . . . in determining whether the use of deadly force gives rise
to negligence liability.” Id. at 1082 (quoting Hayes v. County of San Diego,
305 P.3d 252 (Cal. 2013)). In this regard, California negligence law is at odds
with Ryan’s preclusion of liability for negligence for intentional acts injuring
another.

¶18 Although not addressed by the parties here, Arizona’s
wrongful death statute also provides support for this conclusion. That
statute permits an action for wrongful death damages when the death is
caused by an act that, if the death had not ensued, would have entitled the
decedent to maintain a personal injury action. A.R.S. § 12-611; see Barragan
v. Superior Court, 12 Ariz. App. 402, 405 (1970) (stating that the condition
“that the action could have maintained by the deceased if death had not
ensued, has reference not to the nature of the loss or injury but merely to
the circumstances under which the injury arose and the nature of the
wrongful act, neglect or default complained of.”). Appellants’ two-phase
framing of this case removes the negligence claim from the reach of
damages under the wrongful death act because they make no argument
that Juan, had he lived, could have pursued a personal injury action for the
discrete alleged negligent acts preceding the deputies’ intentional use of
force.

¶19 The deputies’ pre-shooting conduct here did not constitute
negligence separable from the immediately-ensuing intentional shooting.
The record in this case only supports a claim for intentional battery.
Because the shooting was intentional, the negligence-based claims are

6
 TORRES, et al. v. MARICOPA, et al,
Decision of the Court

inapplicable to these facts, and the superior court properly granted
summary judgment on the negligence claim. See Ryan, 245 Ariz. at 62, ¶ 32.

¶20 Consequently, in the absence of proof of underlying
negligence causing harm, the court also properly granted summary
judgment on appellants’ claims for negligent infliction of emotional
distress. See Keck v. Jackson, 122 Ariz. 114, 115 (1979) (concluding that
damages for negligent infliction of emotional distress are recoverable if
caused by the defendant’s negligence). For the same reason, neither the
County5 nor Penzone can be found liable for any direct negligent hiring or
supervision claims. See Mulhern v. City of Scottsdale, 165 Ariz. 395, 398 (App.
1990) (“the employer is not negligent in hiring or retaining the employee as
a matter of law if the theory of the employee's underlying negligence
fails.”).

II. Battery Claim

¶21 Appellants argue the superior court improperly granted
summary judgment on the battery claim, arguing that whether the deputies
were justified in shooting at Juan is a question of fact for the jury to resolve.

¶22 Under Arizona law, law enforcement officers who commit
battery are justified in, and thus not liable for, employing deadly force when
a peace officer reasonably believes deadly force is necessary “[t]o defend
himself or a third person from what the . . . officer reasonably believes to be
the use or imminent use of deadly physical force.” A.R.S. § 13-410(C)(1)
(setting out elements for justification of use of deadly physical force in law
enforcement); A.R.S. § 13-413 (prohibiting civil liability for justified
conduct).

¶23 Plaintiffs are correct that, as a pleading matter, Ryan did not
preclude their battery claim. However, defendants in this civil case had the
burden of proving justification as an affirmative defense by a
preponderance of the evidence. Ryan, 245 Ariz. at 64-65, ¶¶ 43-46. If a
defendant factually establishes the undisputed elements of a justification
defense on the record before the superior court, then the court may enter

5 Arguably, plaintiffs voluntarily relinquished their claim for direct
negligence against the County after the dismissal of the vicarious liability
claim against the County and the filing of the first amended complaint that
omitted the County as a party. See Campbell v. Deddens, 21 Ariz. App. 295,
297 (1974) (first amended complaint supersedes the original complaint; the
original complaint then has no further effect or authority).

7
 TORRES, et al. v. MARICOPA, et al,
Decision of the Court

judgment in the defendants’ favor. See Weekly v. City of Mesa, 181 Ariz. 159,
166 (App. 1994).

¶24 Here, the record shows Juan endangered the deputies’ lives
by throwing a wrench at Deputy Tinoco while charging and yelling “die,
motherfucker!” and that Juan still had the hammer in his hand and was
facing Deputy Kirkland when they fired their weapons. Both the wrench
and hammer were weapons capable of inflicting death or serious bodily
harm on the deputies. See A.R.S. § 13-105(14) (“’Deadly physical force’
means force that is used with the purpose of causing death or serious
physical injury or in the manner of its use or intended use is capable of
creating a substantial risk of causing death or serious physical injury.”).
That Juan was able to strike Deputy Tinoco with the wrench he threw some
distance underscores that he could have struck Deputy Tinoco with the
hammer, which could have caused serious physical injury. The superior
court properly found that no jury could find that use of deadly force in
response to an assault with two deadly weapons was anything other than
objectively reasonable.

¶25 The superior court properly dismissed the battery claim
because defendants established by a preponderance of the evidence that the
deputies reasonably believed the use of deadly force was necessary to
defend themselves from what they reasonably believed to be the use or
imminent use of deadly physical force against them. See A.R.S. § 13-
410(C)(1). And appellants’ argument that this inquiry is and always must
be a question of fact for the jury to decide misses the mark. Cf. Lal v.
California, 746 F.3d 1112, 1118 (9th Cir. 2014); Smith v. City of Hemet, 394 F.3d
689, 701 (9th Cir. 2005) (en banc). The deputies are therefore immune from
civil liability for battery under A.R.S. § 13-413 because their actions were
justified under A.R.S. § 13-410(C)(1).

III. Intentional Infliction of Emotional Distress Claim

¶26 Appellants challenge the superior court’s finding that the
deputies’ conduct was not so extreme and outrageous to state a claim for
intentional infliction of emotional distress.

¶27 Among other things, a claim for intentional infliction of
emotional distress requires proof of extreme and outrageous conduct. Ford
v. Revlon, 153 Ariz 38, 43 (1987). The conduct must be “so outrageous in
character and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a
civilized community.” Cluff v. Farmers Ins. Exch., 10 Ariz. App. 560, 562

8
 TORRES, et al. v. MARICOPA, et al,
Decision of the Court

(1969) (quoting Restatement (Second) Torts Section 46, Comment (d) (1965),
overruled in part on other grounds by Godbehere v. Phoenix Newspapers, Inc., 162
Ariz. 335 (1989). The superior court determines whether acts are
sufficiently extreme and outrageous to state a claim for relief. Mintz v. Bell
Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554 (App. 1995). The issue goes to
the jury only when reasonable minds could differ in determining whether
the conduct was sufficiently extreme or outrageous. Id.

¶28 Here, the deputies responded to a call for help from Juan’s
family, who feared Juan would hurt them. The deputies observed Juan
carrying a wrench and hammer and displaying erratic and aggressive
behavior toward them, including repeatedly demanding they shoot him.
The deputies attempted to de-escalate the situation by telling Juan they
were there to help him and that he had not done anything wrong. The
deputies only engaged Juan with firearms after he assaulted Deputy Tinoco
by hurling a wrench at him while yelling “die, motherfucker!” The superior
court properly found that no reasonable juror could find the deputies’
conduct was extreme and outrageous. The superior court did not err in
dismissing this claim.

IV. Vicarious Liability Claim

¶29 The parties engaged in a contentious debate about the
viability of a vicarious liability claim against the County. The judgment in
favor of the deputies obviates any vicarious liability claim against the
County or Penzone. See Laurence v. Salt River Project Agric. Improvement &
Power Dist., 255 Ariz. 95, 106, ¶ 44 (2023) (“Dismissing a tort claim against
an employee because the claim lacks merit requires the court to also dismiss
a claim against an employer under the doctrine of respondeat superior.”).

CONCLUSION

¶30 For the foregoing reasons, we affirm the superior court’s
ruling. We award costs to defendants upon compliance with Arizona Rule
of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

9