Harianto v. State

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CV 23-0789
FILED 10-17-2024

Appeal from the Superior Court in Maricopa County
No. CV2015-051925
The Honorable Michael D. Gordon, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Co-Counsel for Plaintiffs/Appellants

The Leader Law Firm, Tucson
By John P. Leader
Co-Counsel for Plaintiffs/Appellants

Zachar Law Firm, Phoenix
By Christopher Zachar
Co-Counsel for Plaintiffs/Appellants
Fennemore Craig, P.C., Phoenix
By Douglas C. Northup, Taylor N. Burgoon
Co-Counsel for Defendant/Appellee

Attorney General's Office, Phoenix
By Michael Tryon
Co-Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 Harianto Harianto appeals from the superior court's ruling
granting summary judgment to the State of Arizona ("State"). For the
following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 At 4:27 a.m., on May 16, 2014, a wrong-way driver collided
with the Harianto family's car on southbound Interstate 17 in Yavapai
County. At 4:05 a.m., the Arizona Department of Public Safety ("DPS")
received its first report of the wrong-way driver via a 911 call. At that time,
the driver was in Maricopa County, approximately 17 miles from the
Yavapai County line. Because of the driver's location, the call was routed
to DPS Metro West, which extends to the southern border of Yavapai
County.

¶3 DPS Metro West dispatcher Nancy Jo Zeiher was the lead
dispatcher on the call. The call was classified as a priority 1, the highest-
priority call. Zeiher immediately dispatched the call over the DPS Metro
West District radio. At the same time, Zeiher updated the DPS Computer-
Aided Dispatch ("CAD") to note that several DPS troopers were
responding.

¶4 At 4:07 a.m., Zeiher reported in the CAD that an officer
responded to the call. Then, at 4:08 a.m., Zeiher again reported that
personnel from both the Maricopa County Sheriff's Office and the Phoenix
Police Department were responding to the call. At approximately 4:12 a.m.,
a Metro West dispatcher notified DPS Flagstaff dispatch office ("District

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12") that the wrong-way driver was heading their direction. At that time,
the driver was still approximately 12 to 14 miles from the Yavapai County
line. At 4:14 a.m., Zeiher also contacted the Flagstaff dispatch office, which
notified DPS troopers in Yavapai County about the wrong-way driver.

¶5 At 4:22 a.m., the only available trooper in District 12 received
the call from Flagstaff dispatch. The trooper immediately slowed down to
initiate a traffic break on Interstate 17 to stop southbound traffic. He
continued this traffic break for approximately one mile. At 4:27 a.m., he
saw traffic ahead was backed up for approximately one mile. While the
exact time of the accident is unknown, it occurred not later than 4:26 a.m.

¶6 On May 15, 2015, Harianto sued the State, the City of Phoenix,
Maricopa and Yavapai Counties, and the Maricopa and Yavapai County
Sheriffs. In November 2015, the court dismissed Harianto's complaint
without prejudice as to City of Phoenix, Yavapai County, and the Yavapai
County Sheriff. Then, Harianto filed an amended complaint solely against
the State, Maricopa County, and the Maricopa County Sheriff. A year later,
the superior court dismissed all claims against Maricopa County and the
Sheriff. Nearly two years later, the superior court granted summary
judgment for the State, finding that the State had immunity for claims
against DPS and the State was not grossly negligent.

¶7 Harianto filed his first notice of appeal on June 29, 2018. This
Court affirmed the superior court's holding and agreed that: 1) Harianto
failed to establish the State proximately caused the injuries, and 2) any DPS
officers involved were protected by qualified immunity. Further, we held
that statutory immunity precluded claims that DPS dispatchers negligently
mishandled the calls. Harianto appealed to our supreme court, which
vacated our opinion and remanded the matter.

¶8 On June 15, 2021, this Court vacated the superior court's
ruling on the negligence of the DPS dispatchers and remanded the case to
consider whether Harianto could establish that the dispatchers were
grossly negligent under A.R.S. § 12-713. On remand, the State moved to
exclude plaintiff's expert and moved for summary judgment on Harianto's
gross-negligence claim. The superior court granted both motions, ending
the lawsuit. Harianto filed this notice of appeal on November 20, 2023. We
have jurisdiction under A.R.S. § 12-2101(A)(1).

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DISCUSSION

¶9 On appeal, Harianto argues that the superior court erred in
granting the State's summary judgment motion and excluding his only
expert witness.

¶10 We review the superior court's grant of summary judgment
de novo. Coulter v. Grant Thornton, LLP, 241 Ariz. 440, 447, ¶ 23 (App. 2017).
"When reviewing a grant of summary judgment, we view the facts in the
light most favorable to the non-moving party." Wells Fargo Bank, N.A. v.
Allen, 231 Ariz. 209, 213, ¶ 14 (App. 2012). Summary judgment is
appropriate when "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). We will affirm the entry of summary
judgment if it is correct for any reason. Hawkins v. State, Dep't of Econ. Sec.,
183 Ariz. 100, 103 (App. 1995).

I. Lost-Chance Doctrine.

¶11 Ordinarily, causation is a factual issue reserved for the jury.
Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). But when a plaintiff presents
insufficient evidence, offering only speculation about the cause of an injury,
summary judgment is proper. Robertson v. Sixpence Inns of Am., Inc., 163
Ariz. 539, 546 (1990). Thus, to survive summary judgment, the plaintiff
must present evidence from which a jury could reasonably infer that the
defendant's conduct was the proximate cause of the plaintiff's injuries.
Ritchie v. Krasner, 221 Ariz. 288, 298, ¶ 23 (App. 2009).

¶12 Harianto urges us to apply the lost-chance doctrine, which
"permits the case to go to the jury on the issue of causation with less definite
evidence of probability than the ordinary tort case." Thompson v. Sun City
Cmty. Hosp., Inc., 141 Ariz. 597, 608 (1984). But while "Thompson 'soften[ed]
the edge of the probabilities formula considerably,' . . . the proof . . . must
rise to the level of substantiality." Lohse v. Faultner, 176 Ariz. 253, 263 (App.
1992). The lost-chance doctrine applies when the "defendant undertook to
protect plaintiff from a particular harm and negligently interrupted the
chain of events, thus increasing the risk of that harm." Thompson, 141 Ariz.
at 608 (emphasis added). Further, this doctrine applies only where "the
duty breached was [] imposed to prevent the type of harm which
[occurred]." Id. Otherwise, the "traditional [negligence] rule prevails." Id.

¶13 Harianto argues that had Zeiher immediately cross-
dispatched her call, it would have increased the probability that the trooper
could have intervened sooner to prevent the wrong-way driver accident.

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However, this assertion is purely speculative. See Grafitti-Valenzuela ex rel.
Graffiti v. City of Phoenix, 216 Ariz. 454, 460, ¶ 21 (App. 2007) ("The mere
possibility of causation is not enough."). No evidence supports this claim
because the trooper testified that he would not have acted as Harianto
suggests; instead, he would have immediately initiated a traffic break when
he received the dispatch, placing him even further away from the accident.

¶14 Furthermore, even if there was some evidence to support the
inference that, despite his denial, the trooper would have acted differently,
this situation does not satisfy the requirements for the lost-chance doctrine.1
Harianto offers no evidence that Zeiher "undertook to protect [them] from
a particular harm and negligently interrupted the chain of events, thus
increasing the risk of that harm." Thompson, 141 Ariz. at 616. Instead,
Harianto only contends that Zeiher should have immediately cross-
dispatched the call to the Flagstaff District. And that, had she done this, the
trooper would have sped towards the oncoming driver, performed a traffic
break after passing Harianto, and stopped the accident from happening.
But as discussed supra ¶ 13, no record evidence supports this assertion.
Speculation that something different might have happened is insufficient.
See Grafitti-Valenzuela, 216 Ariz. at 460, ¶ 21 ("The mere possibility of
causation is not enough.").

¶15 In Lohse, we considered applying the lost-chance doctrine
when a forest fire spread from plaintiff's property to defendant's adjoining
property. 176 Ariz. 253. There, the plaintiff's expert witness testified that
while "a proper fire patrol would have 'increased the probability' of detection
and suppression" of the fire, it was speculative as to whether the fire patrol
would have detected and suppressed the fire. Id. at 260–61. We determined
there was insufficient evidence that, but for the defendant's negligence, the
plaintiff would have had a "substantially better chance" of escaping injury
and "it was wholly speculative whether [defendant's] agents, in the absence
of negligence, would have been positioned to prevent harm." Id. at 263
(quoting Thompson, 141 Ariz. at 607). Ultimately, we found the evidence
there "too thin, even under Thompson" to apply the lost-chance doctrine. Id.

1 For purposes of this decision, we assume that the lost-chance
doctrine can apply. We note, however, that our Court typically has applied
the lost-chance doctrine only in medical-malpractice cases. E.g., Ritchie, 221
Ariz. 288; Stanley v. McCarver, 208 Ariz. 219 (2004); Koskovich v. Scottsdale
Healthcare Hosps., No. 1 CA-CV 20-0371, 2021 WL 1098572 (Ariz. App. Mar.
23, 2021) (mem. decision); see also, e.g., Lohse, 176 Ariz. at 263 (declining to
apply the lost-chance doctrine in a non-medical-malpractice case but noting
that our supreme court "did not purport to limit its rule to" such cases).

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at 264. Here, as in Lohse, the evidence falls short of establishing causation
"ris[ing] to the level of substantiality." Id. at 263.

¶16 Thus, no evidence supports the last-chance doctrine, id., and
this situation presents the "ordinary" negligence case referred to in
Thompson, 141 Ariz. at 608. Because Harianto presented no evidence of
causation, the superior court correctly granted the State's summary
judgment motion.

II. Expert Witness Testimony.

¶17 Additionally, Harianto argues the court erred in failing to
allow his expert to testify. The witness would have testified about 911
dispatcher standards of care. Because Harianto failed to present evidence
of causation, the standard of care is not at issue, and we need not address
it.

CONCLUSION

¶18 We affirm the superior court's grant of summary judgment.

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

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