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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERMA JOHNSON, Plaintiff/Appellant,

v.

STATE OF ARIZONA, et al., Defendants/Appellees.

No. 1 CA-CV 25-0271
FILED 01-28-2026

Appeal from the Superior Court in Maricopa County
No. CV2021-008186
The Honorable Scott A. Blaney, Judge

AFFIRMED

COUNSEL

Al Arpad Esquire, Phoenix
By Alexander R. Arpad
Co-Counsel for Plaintiff/Appellant

The People’s Law Firm, PLC, Phoenix
By Stephen D. Benedetto
Co-Counsel for Plaintiff/Appellant

Fennemore Craig, P.C., Phoenix
By Douglas C. Northup, Emily A. Ward
Counsel for Defendants/Appellees
 JOHNSON v. STATE, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge Brian Y. Furuya and Judge Kent E. Cattani joined.

K I L E Y, Judge:

¶1 Erma Johnson (“Erma”) sued the State of Arizona (“the
State”) and trooper George Cervantes (“Cervantes”) for damages arising
out of the shooting death of her son Dion Johnson (“Dion”).1 The superior
court granted summary judgment in favor of the State and Cervantes
(collectively, “Defendants”) on all claims, and Erma appealed. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Viewed in the requisite light most favorable to Erma as the
party against whom summary judgment was entered, see Doe v. Roman Cath.
Church of Diocese of Phoenix, 255 Ariz. 483, 486, ¶ 2 (App. 2023) (citation
omitted), the record shows that Cervantes was on duty at about 5:30 a.m.
on May 20, 2020, when he spotted a Toyota Prius parked in the “gore-point”
(the triangular area where the on-ramp meets the freeway) of the Tatum
Boulevard on-ramp to State Route 101 in Phoenix. Cervantes parked his
motorcycle behind the Prius and approached it on the passenger side.
Opening the passenger door, Cervantes saw the car’s sole occupant, later
identified as Dion, asleep in the driver’s seat, with the keys in the ignition
and the engine running. Cervantes saw an empty tequila bottle between the
driver’s seat and the center console, and noticed that the sleeping driver
appeared to have urinated in his pants. Cervantes also saw a semiautomatic
pistol on the passenger seat, which he removed from the car for his own
safety. As he walked back to his motorcycle to secure the pistol in the
saddlebag, he radioed for backup.

¶3 Cervantes then returned to the Prius, opened the passenger
door, and tried to reach over to remove the keys from the ignition. Unable
to do so, he walked around the car to the driver’s side and opened the door.
Seeing that Dion was now awake and had his hands on the steering wheel,
Cervantes reached in and placed one handcuff around Dion’s left wrist.

1 Because they share the same last name, we respectfully refer to Dion

Johnson and Erma Johnson by their first names for clarity.

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Dion immediately reached, with his other hand, to the passenger seat where
the pistol had been before Cervantes removed it.

¶4 Cervantes then tried to pull Dion out of the Prius, but Dion
resisted. The two struggled, with Dion still in the driver’s seat and
Cervantes standing partly in the freeway traffic lane. A passing motorist,
J.L., who saw the altercation and called 911 to report it, stated that she had
“to swerve out of the lane” to avoid hitting Cervantes. Meanwhile, another
motorist, J.G., stopped his car in the freeway lane behind Cervantes to block
oncoming traffic from hitting him.

¶5 Trooper Michael Whitney, who heard Cervantes’s call for
backup, watched the altercation via cameras mounted near the on-ramp.
He saw Cervantes struggling with Dion and also saw other motorists
stopping nearby.

¶6 As Cervantes and Dion struggled, Dion suddenly pivoted in
his seat and pulled his feet up to his chest as though preparing to kick
Cervantes away from the car and further into the traffic lane. Fearing for
his life, Cervantes drew his service pistol, pointed it at Dion, and
commanded Dion to stop resisting.

¶7 Dion appeared to relax, and Cervantes began to holster his
pistol. Suddenly, Dion grabbed Cervantes’s vest with his left hand and
pulled him toward the car while, with his right hand, he grabbed
Cervantes’s arm that was holding the pistol. Cervantes fired two shots. One
missed; the other hit Dion in the abdomen. Less than 18 seconds passed
between the time Cervantes attempted to place Dion under arrest and the
shooting.

¶8 Dion continued to struggle, even after another officer arrived
by motorcycle moments later. Together, Cervantes and the other officer
removed Dion from the car and gained control of his arms long enough to
place him in handcuffs. The other officer administered first aid until an
ambulance arrived and took Dion to a nearby hospital, where he later died.
Toxicology results showed that Dion had a blood alcohol concentration of
.188.

¶9 In May 2021, Erma filed suit against the State and Cervantes,
asserting a variety of claims. After discovery, Defendants moved for
summary judgment on all claims, asserting, inter alia, that the claims lacked
a basis in fact or law because (1) Cervantes was shielded from liability by
the doctrine of qualified immunity and was justified in shooting Dion in
any event, and (2) the State cannot, as a matter of law, be liable for its agent’s

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non-tortious conduct. The State supported its motion with evidence that
included pages from the transcript of the depositions of Cervantes and J.G.

¶10 In response, Erma admitted, or at least failed to controvert,
most of the facts alleged by Defendants in support of their motion for
summary judgment. She nonetheless asserted that Cervantes had “severe
credibility issues,” and therefore that a jury must be permitted to determine
“whether to believe [his] self-serving version(s) of events.” According to
Erma, “self-serving statements of officers cannot be the basis of granting
summary judgment.”

¶11 After further briefing and argument, the superior court issued
a lengthy ruling granting Defendants’ motion. In so ruling, the court noted
that Erma failed to controvert Defendants’ factual allegations with
competent evidence and, “in many cases, fail[ed] to even deny” them. The
uncontroverted evidence, the court determined, entitled Defendants to
judgment as a matter of law.

¶12 Erma timely appealed. We have jurisdiction under A.R.S. §
12-2101(A)(1).

DISCUSSION

¶13 Erma challenges the grant of summary judgment on all of her
claims, arguing that the superior court erred by drawing inferences in favor
of Defendants and ignoring the controverting evidence she presented.

¶14 Summary judgment is appropriate when 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). If the moving party makes a prima
facie showing of its entitlement to summary judgment, the burden shifts to
the non-moving party to “come forward with evidence establishing the
existence of a genuine issue of material fact that must be resolved at trial.”
Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 12 (App. 2008). Only
disputes over facts that “might affect the outcome” of the case will
“properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also Everson v. Tucci, 1 CA-CV 20-
0202, 2020 WL 7039019 at *2, ¶ 14 (Ariz. App. Dec. 1, 2020) (mem. decision)
(“Factual disputes do not preclude summary judgment if the disputed facts
are not material.”). We review a grant of summary judgment de novo,
viewing the evidence and reasonable inferences therefrom in the light most
favorable to the non-moving party. Doe, 255 Ariz. at 488, ¶ 18 (citation
omitted).

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I. Claims against Cervantes

A. § 1983 claim

¶15 Erma asserted a civil rights claim against Cervantes under 42
U.S.C. § 1983, alleging that Cervantes “escalated a simple traffic encounter
into an unreasonably dangerous situation” and then “used excessive and
unreasonable force when he fatally shot Dion[,]” thereby violating the due
process rights of both Dion and Erma.

¶16 The Fourteenth Amendment to the United States Constitution
states in pertinent part that “[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law[.]” U.S. Const., amend. XIV,
§ 1. Section 1983 of the United States Code authorizes a private right of
action against any person who, under color of law, deprives another of “any
rights, privileges, or immunities secured by the Constitution and laws” of
the United States. 42 U.S.C. § 1983. “[A] parent has a constitutionally
protected liberty interest under the Fourteenth Amendment in the
companionship and society of his or her child[.]” Curnow ex rel. Curnow v.
Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). The wrongful deprivation
of that relationship by one acting under color of law may give rise to a claim
under § 1983. See A.D. v. Cal. Highway Patrol, 712 F.3d 446, 461 (9th Cir. 2013)
(affirming jury verdict for plaintiff child of decedent on § 1983 claim based
on deprivation of companionship in violation of Fourteenth Amendment).

¶17 A government official is entitled to qualified immunity from
a § 1983 claim, and so cannot be liable unless the plaintiff shows that the
official “(1) violated a federal statutory or constitutional right and (2) the
unlawfulness of [the official’s] conduct was clearly established at the time.”
Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022) (citation modified). To
overcome the officer’s qualified immunity in a § 1983 action arising out of
a police shooting, the plaintiff “must show that the officer[’s] conduct
‘shocks the conscience.’” Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir.
2022) (citation omitted).

¶18 In granting summary judgment on Erma’s § 1983 claim, the
superior court held that “no reasonable juror could find that Trooper
Cervantes’ use of deadly force while struggling with Johnson” shocks the
conscience, and therefore that Cervantes was entitled to qualified
immunity. Erma challenges this ruling, arguing that she presented evidence
from which a jury could conclude that Cervantes unnecessarily “escalate[d]
the situation” when he attempted to singlehandedly arrest Dion by
approaching the Prius on the driver’s side — thereby placing himself in

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harm’s way in the freeway traffic lane — instead of waiting for backup to
arrive. She further argues that the court erroneously failed to consider
evidence undermining Cervantes’s credibility, which, she maintains,
would have permitted a reasonable jury to disbelieve his account of the
relevant events.

¶19 When deciding whether an officer’s actions in a police
shooting “shock the conscience,” courts use one of two alternative tests.
Ochoa, 26 F.4th at 1056. Under the first, known as the “deliberate-
indifference” test, an officer loses the shield of qualified immunity if he acts
with deliberate indifference to another’s rights by disregarding “a known
or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61
(2011) (citation omitted). Under the second, known as the “purpose-to-
harm” test, an officer loses the qualified immunity shield if he “acted with
a purpose to harm the decedent for reasons unrelated to legitimate law
enforcement objectives.” Ochoa, 26 F.4th at 1056 (citation modified); see also
Ring v. City of Chandler, CV-24-00630-PHX-SPL, 2025 WL 254549 at *6 (D.
Ariz. Jan. 21, 2025) (“In urgent, emergency situations that necessitate fast
action and involve competing public safety obligations, a plaintiff must
show that an official acted with a ‘purpose to harm’ for reasons other than
legitimate law enforcement objectives to meet the ‘shocks the conscience’
standard.”). “Legitimate objectives” that will defeat a plaintiff’s attempt to
satisfy the purpose-to-harm test “include arrest, self-protection, and
protection of the public.” Ochoa, 26 F.4th at 1056 (citation modified).
Conversely, illegitimate objectives may be found “when the officer had any
ulterior motive for using force against the suspect,” or “when an officer uses
force against a clearly harmless or subdued suspect.” Id. (citation modified).

¶20 Whether the deliberate-indifference test or the purpose-to-
harm test applies to a given situation depends on whether the officer had
time to deliberate before taking the challenged action. Id. If so, the
deliberate-indifference test applies. Id.; see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (“As the very term ‘deliberate indifference’ implies,
the standard is . . . employed only when actual deliberation is practical[.]”).
“Deliberation is not possible if the officers encountered fast paced
circumstances presenting competing public safety obligations.” Ochoa, 26
F.4th at 1056 (citation modified). “[I]f the situation at issue escalated so
quickly that the officer had to make a snap judgment[,]” the purpose-to-
harm test applies. Id. (citation modified).

¶21 In their statement of facts in support of their motion for
summary judgment, Defendants alleged the facts set forth in Paragraphs
2 - 8 above. Erma admitted almost all of them. Indeed, she did not expressly

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deny any of them. Notably, Erma admitted that Cervantes decided to arrest
Dion without waiting for backup out of concern that Dion, who was clearly
intoxicated, would attempt to drive away from the scene, thereby placing
other motorists at risk. Erma further admitted that when Dion pivoted in
the driver’s seat and pulled his feet up to his chest as though preparing to
kick Cervantes into the traffic lane, Cervantes feared for his life. She did not
deny Defendants’ allegation that Dion grabbed for Cervantes’s service
weapon.2 And she expressly admitted that less than eighteen seconds
passed between the time Cervantes opened the driver’s side door of the
Prius and the shooting. These facts alone establish that Cervantes attempted
to arrest Dion for legitimate public safety reasons and that the encounter
rapidly escalated when Dion’s own actions placed the officer in fear for his
own safety.

¶22 In response to some of Defendants’ factual allegations, Erma
affirmatively alleged that Dion was “approximately five feet and nine
inches tall and weighed one hundred fifty-four pounds,” an assertion
whose significance she never tried to explain. She also affirmatively alleged
that Cervantes could have avoided the safety risk posed by standing in the
traffic lane had he attempted to arrest Dion from the passenger side of the
Prius. She presented no evidence, however, that an officer can safely effect
a roadside arrest of a person sitting in the driver’s seat of a car by reaching
through the vehicle from the passenger side.

¶23 Although she did not controvert the critical facts alleged by
Defendants, Erma asserts that the superior court failed to consider other
evidence calling Cervantes’s credibility into question. Such evidence, she
asserts, gives rise to “material factual disputes about what happened.”
Erma asserts, for example, that Cervantes’s disciplinary history gives cause
to doubt his veracity. But the only evidence of his disciplinary history that
she presented during the summary judgment proceedings consisted of
several unauthenticated pages from a report that Erma identifies as having
been drafted by her expert witness, Spencer Fomby. These pages are not
supported by affidavit, and so are insufficient, as a matter of law, to
withstand summary judgment. GM Dev. Corp. v. Cmty. Am. Mortg. Corp.,
165 Ariz. 1, 5 (App. 1990) (“As a general rule, an unsworn and unproven

2 Specifically, Defendants alleged that Dion grabbed Cervantes by the arm

in which the officer was holding his service weapon and pulled his arm
forward. Erma did not deny this allegation, but instead affirmatively (and
non-responsively) alleged that Cervantes had already put handcuffs on one
of Dion’s wrists by that point.

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assertion is not a fact that a trial court can consider in ruling on a motion
for summary judgment.”).

¶24 Erma asserts that Cervantes’s purported “dishonesty and
disciplinary history” were established by her allegations about them in the
complaint, which, she contends, “were never even denied in [Defendants’]
Answer.” In support of her assertion, she notes that in responding to many
of the allegations of her complaint, Defendants’ answer often included the
phrase “the document speaks for itself.” As Erma correctly observes,
Arizona Rule of Civil Procedure 8(c)(2)(A) does not allow a defendant to
respond to an allegation by stating “the document speaks for itself.” But
Erma overlooks the fact that each paragraph of the answer that includes the
phrase “the document speaks for itself” also includes an express denial of
the corresponding allegation of Erma’s complaint. We therefore reject
Erma’s suggestion that Defendants’ answer failed to properly deny the
complaint’s allegations about Cervantes’s credibility and disciplinary
history. And because the complaint was not verified and its allegations
were denied in the Defendants’ answer, the complaint’s allegations alone
are insufficient to withstand summary judgment. See Forty-Four Hundred
East Broadway Co. v. 4400 East Broadway, 139 Ariz. 498, 502 (App. 1983) (“A
party resisting a motion for summary judgment cannot simply rely on his
pleadings to meet his burden of coming forward with a showing that there
is competent evidence so as to create an issue for trial.”).

¶25 Erma also asserts that Cervantes made inconsistent
statements that create a question of fact about the accuracy of his account
of the relevant events. She notes, for instance, that Cervantes stated at his
deposition that he was unable to see inside the Prius due to its tinted
windows, but then later testified that he was able to see Dion moving in the
Prius before he attempted to arrest him. But Erma did not dispute the facts
set forth in Paragraphs 2-8 above, which are sufficient to establish
applicability of the purpose-to-harm test. Purportedly inconsistent
statements made by Cervantes on immaterial matters could not preclude
summary judgment. Orme School v. Reeves, 166 Ariz. 301, 311 (1990) (noting
that “dispute over irrelevant or immaterial facts” is not a basis for denial of
summary judgment). And even if Erma had properly presented evidence
of dishonest or unnecessarily aggressive conduct by Cervantes on other
occasions, such evidence would not be sufficient to warrant denial of
summary judgment based on the uncontroverted facts of this case. See
Crawford-El v. Britton, 523 U.S. 574, 600 (1998) (noting that if the “defendant-
official” in a 1983 case “has made a properly supported motion” for
summary judgment based on qualified immunity, “the plaintiff may not
respond simply with general attacks upon the defendant’s credibility, but

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rather must identify affirmative evidence from which a jury could find that
the plaintiff has carried his or her burden of proving the [improper]
motive.”); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512 (1984)
(“[D]iscredited testimony is not considered a sufficient basis for drawing a
contrary conclusion.”).

¶26 Finally, Erma asserts that Cervantes’s deposition testimony is
insufficient to support summary judgment because his testimony was
“uncorroborated” and “self-serving.” This assertion wholly lacks merit;
testimony is not inadmissible merely because it is uncorroborated or self-
serving. See State v. Conn, 137 Ariz. 152, 155 (App. 1982) (recognizing that
defendant’s out-of-court statements “were not inadmissible simply because
they were self serving[,]” and an objection on that basis “alone would not
be valid.”); see also Ivey v. Turning Point Homes and Dev., Inc., 1 CA-CV 23-
0021, 2023 WL 7544844 at *3, ¶ 17 (Ariz. App. Nov. 14, 2023) (mem. decision)
(“[T]he fact that a party’s sworn statements are self-serving does not,
without more, render those statements inadmissible” for summary
judgment purposes). Absent competent evidence with which to undermine
Cervantes’s credibility, and lacking any facts to controvert his version of
events, Erma’s “bare assertion that the opposing party’s uncontroverted
evidence might be disbelieved is insufficient to resist judgment as a matter
of law[.]” Favorito v. Pannell, 27 F.3d 716, 721 (1st Cir. 1994).

¶27 In support of her assertion that Cervantes’ testimony should
be rejected as “self-serving” despite her failure to submit admissible
evidence to controvert it, Erma cites Cruz v. City of Anaheim, 765 F.3d 1076
(9th Cir. 2014). But Cruz holds merely a court in such circumstances must
“carefully examine all the evidence in the record . . . to determine whether
the officer’s story is internally consistent and consistent with other known
facts.” 765 F.3d at 1079. Erma has not pointed to any such inconsistencies
here, and our review of the record reveals none.

¶28 In sum, the uncontroverted evidence shows that the
confrontation between Cervantes and Dion escalated quickly in the less-
than-eighteen seconds that passed between the opening of the driver’s side
door and the shooting. The purpose-to-harm test therefore applies here,
and Erma could not prevail on her § 1983 claim unless she showed that
Cervantes “acted with a purpose to harm [Dion] for reasons unrelated to
legitimate law enforcement objectives,” see Ochoa, 26 F.4th at 1056; see also
Porter v. Osborn, 546 F.3d 1131, 1139 (9th Cir. 2008) (holding that the
purpose-to-harm standard applied to the “approximately five-minute
altercation[,]” which “was obviously fast paced” and “was also quickly
evolving and escalating[.]”)

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¶29 The uncontroverted facts establish that Cervantes had a
legitimate objective — public safety — when he attempted to place the
intoxicated Dion under arrest before he could drive away, and that
Cervantes had a legitimate objective — self-protection — when he used
deadly force during the altercation. Conversely, Erma presented no
evidence that Cervantes acted from any illegitimate objective. Nothing in
the record suggests, for example, that Cervantes acted as he did due to
personal animus toward Dion or for another ulterior motive, or that Dion
had already been subdued before Cervantes shot him. See Garcia v. City of
Phoenix, 738 F.Supp.3d 1164, 1181-82 (D. Ariz. 2024) (holding that defendant
officers were entitled to qualified immunity as a matter of law because
plaintiffs failed to overcome purpose-to-harm standard; plaintiffs
“presented no evidence” that officers’ motive was “to bully” decedent or
“to get even with him in some way,” or that officers acted “for any reason
other than to protect themselves and those around them.”). Cervantes’s
“legitimate objectives” defeat Erma’s efforts to overcome the purpose-to-
harm test. We therefore agree with the superior court that no reasonable
jury could find that Cervantes’s actions shock the conscience. Cervantes’s
actions are, therefore, shielded by qualified immunity, and the court
properly granted summary judgment on Erma’s § 1983 claim.

B. Wrongful death based on assault and battery

¶30 Erma asserted a wrongful death claim against Defendants
based on the intentional torts of assault and battery.

¶31 A spouse, child, parent, or estate of a decedent can bring a
wrongful death claim for a “wrongful act, neglect or default” which caused
the decedent’s death and for which the decedent could have brought a
claim if the decedent had lived. A.R.S. §§ 12-611, -612(A).

¶32 To establish an assault claim, the plaintiff must show that the
defendant put the plaintiff in imminent apprehension of a harmful or
offensive contact. Restatement (Second) of Torts, § 21 (1965). To establish a
battery claim, a plaintiff must show that the defendant intentionally caused
a harmful or offensive contact with the plaintiff to occur. Johnson v. Pankratz, 196 Ariz. 621, 623, ¶ 6 (App. 2000), citing Restatement (Second) of Torts, §
13 (1965).

¶33 Under A.R.S. § 13-410(C)(1), the use of deadly force by a
police officer is justified if the officer “reasonably believes that it 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.”

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Civil liability may not be predicated on the use of deadly force that is
justified under A.R.S. § 13-410(C)(1). See A.R.S. § 13-413.

¶34 In granting summary judgment on Erma’s wrongful death
claims against Cervantes, the court found, inter alia, that Cervantes had
established a justification defense under A.R.S. §§ 13-410 and -413. Erma
asserts that in so holding, the court improperly disregarded “conflicting
testimony from various witnesses” and inconsistences in statements made
by Cervantes “that created doubt about the facts of the altercation.”

¶35 In their statement of facts supporting their motion for
summary judgment, Defendants asserted that during the struggle, Dion
“swiveled in the driver’s seat to face Cervantes” and “brought his knees up
to his chest” as though “preparing to kick Cervantes” into the traffic lane.
At that point, Cervantes feared for his life. Cervantes pulled out his service
weapon, and, holding it in his right hand, commanded Dion to stop. When
Dion appeared to comply, Cervantes prepared to holster his weapon. Dion
then grabbed Cervantes’s vest with one hand and, with the other arm,
grabbed Cervantes’s right wrist. Cervantes feared Dion was trying to take
his service pistol and would shoot him if given the opportunity. Cervantes
fired two shots, one of which struck Dion.

¶36 Erma disputed none of these facts. In opposing summary
judgment on her wrongful death claim based on assault and battery, Erma
advances the same evidentiary arguments about purported doubts about
Cervantes’s credibility presenting a jury question, see supra ¶¶ 23-27.
Because, as noted above, the facts upon which the superior court made its
finding were uncontroverted, Erma’s challenges to Cervantes’s credibility
fail to impact the analysis. The undisputed facts established that Cervantes
shot Dion because Dion’s attempts to take his service weapon during a
physical altercation led him to fear for his life. Based on the uncontroverted
facts, no reasonable jury could have reached any conclusion other than that
Cervantes’s use of deadly force was justified under A.R.S. § 13-410(C)(1).
Therefore, the superior court correctly granted summary judgment on this
claim. See A.R.S. § 13-413.

C. Wrongful death based on negligence and gross negligence

¶37 Erma also asserted wrongful death claims against Defendants
based on negligence and gross negligence.

¶38 To establish a negligence claim, the plaintiff must show that
the defendant owed a duty that he or she breached, a causal connection
between the breach and the resulting injury, and damages. See, e.g., Gipson

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v. Kasey, 214 Ariz. 141, 143-44, ¶ 11 (2007). To establish a gross negligence
claim, the plaintiff “essentially must show wanton misconduct that is
flagrant and evinces a lawless and destructive spirit.” Badia v. City of Casa
Grande, 195 Ariz. 349, 356, ¶ 27 (App. 1999) (citation modified).

¶39 In granting summary judgment on Erma’s wrongful death
claim against Cervantes based on negligence, the superior court held the
claim precluded by our supreme court’s decision in Ryan v. Napier, 245 Ariz.
54 (2018). As the court held, Ryan v. Napier precludes “a negligence claim”
based “on a law enforcement officer’s intentional acts — such as the
intentional shooting of [Dion] in this case.” Erma challenges this holding,
insisting that Ryan v. Napier is distinguishable and therefore does not
govern this case.

¶40 In Ryan v. Napier, the plaintiff asserted a negligence claim for
bite injuries sustained when the officer who was trying to arrest him
released a police dog because he refused to comply with commands to cease
resisting arrest. The Arizona Supreme Court held the claim barred as a
matter of law, stating that because “negligence and intent are mutually
exclusive grounds for liability[,]” a plaintiff “cannot assert a negligence
claim based solely on an officer’s intentional use of physical force.” 245
Ariz. at 57, 60, ¶¶ 1, 20. In dicta, the court stated that a plaintiff may properly
“base a negligence claim on conduct by the officer that is independent of
the intentional use of physical force.” Id. at 57, ¶ 1. Relying on that dicta,
Erma argues that Ryan v. Napier does not preclude liability here because,
although the intentional act of shooting Dion cannot be brought as a
negligence claim, Cervantes can be held liable in negligence for his actions
in attempting to arrest Dion from the driver’s side of the car instead of
waiting for backup to arrive.

¶41 Although unpublished, our decision in Torres v. Maricopa
County, No. 1 CA-CV 23-0768, 2024 WL 4442857 (Ariz. App. Oct. 8, 2024), is
instructive. After being called to the scene of a domestic disturbance, police
shot Torres after he lunged at them with a hammer. Id. at *1, ¶ 4. Torres’s
parents asserted wrongful death claims against the officers for battery and
for negligence arising from the “pre-shooting conduct [that] unnecessarily
escalated the situation[.]” Id. at *2, ¶ 6. The superior court found that Ryan
v. Napier precluded the negligence claim because “the damages plaintiffs
sought arose from [Torres’s] death, which occurred as the direct result of
the intentional act of shooting[.]” Id. at ¶ 7.

¶42 On appeal, the plaintiffs argued that their negligence claim
was based solely on the deputies’ “pre-shooting” conduct, which, they

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contended, was “distinct” from their conduct in shooting Torres. Id. at ¶ 13.
Specifically, the plaintiffs argued that the officers were negligent in the
build-up to the shooting by failing to “defuse and de-escalate the
situation[,]” “wait for backup[,]” or “control” Torres by “non-fatal means.”
Id. at *3, ¶ 14.

¶43 The Torres court rejected the plaintiffs’ argument, holding that
Ryan v. Napier foreclosed their negligence claim because their allegations of
the negligent build-up, even if true, were “not independent of the
intentional use of force” because the build-up “led directly to that
intentional use of force.” Id. (internal citation omitted). The Torres court
observed that Arizona’s wrongful death statute “permits an action for
wrongful death damages when the death is caused by an act that . . . would
have entitled the decedent to maintain a personal injury action” if the
decedent had lived. Id. at ¶ 18 (citing A.R.S. § 12-611). Because Torres, had
he survived the shooting, could not have “pursued a personal injury action
for the discrete alleged negligent acts preceding the deputies’ intentional
use of force[,]” his survivors could not pursue such a claim, either. Id.
Because “[t]he deputies’ pre-shooting conduct . . . did not constitute
negligence separable from the immediately-ensuing intentional
shooting[,]” the Torres court concluded, the only claim supported by the
record was for “intentional battery[,]” and “the superior court properly
granted summary judgment on the negligence claim.” Id. at *4, ¶ 19.

¶44 Likewise, in Weber v. City of Kingman, No. 1 CA-CV 21-0063,
2022 WL 1468246 at *1, ¶ 3 (Ariz. App. May 10, 2022), an officer called to
the scene of a domestic disturbance shot and killed Weber, an armed
suspect who refused to exit his trailer in response to police commands.
Weber’s wife asserted a wrongful death claim based on negligence, alleging
that the officer’s “pre-shooting conduct, separate and apart from the
intentional act of shooting, gave rise to distinct negligence claims that
contributed” to Weber’s death. Id. at ¶ 4. The trial court granted summary
judgment, holding that Ryan v. Napier, precluded the negligence claim. Id.
at *2, ¶ 5. On appeal, this Court affirmed, holding that because “the basis
for damages arose from [the officer’s] intentional decision to shoot[,]” the
plaintiff’s challenge to the officer’s purportedly “negligent acts and
omissions . . . amount to questioning” the officer’s “pre-tactical shooting
decisions[.]” Id. at ¶ 10. “No semantic recasting of events,” the Weber court
stated, “can alter the fact that the shooting was the immediate cause of
[Weber’s] death and, consequently, the basis of [his wife’s] claim.” Id. at ¶ 9
(citation modified).

13
 JOHNSON v. STATE, et al.
Decision of the Court

¶45 In this case, Erma advanced the same theory in this case as the
plaintiffs in Torres and Weber, and on similar facts. Specifically, Erma
asserted that Cervantes acted negligently “before he ever . . . drew his gun”
by “deciding to step into an active freeway traffic lane to initiate a physical
confrontation without waiting for backup.” Erma, in other words, based her
claim on purportedly negligent acts that culminated in an intentional
shooting. But because the intentional shooting is the only harm that Dion
sustained as a result of the purportedly negligent acts, the pre-shooting acts
are not separately actionable on a negligence theory. Our prior analysis in
Torres and Weber is squarely on point here. The superior court correctly
determined that Ryan v. Napier precludes Erma’s wrongful death claim
based on a theory of negligence.

¶46 Although Erma alleged gross negligence as well as negligence
in her complaint, she makes no argument that her gross negligence claim
survives Ryan v. Napier if her ordinary negligence claim does not. We
therefore affirm the superior court’s ruling on all “negligence-based
claims[,]” against Cervantes, including gross negligence.

II. Claims against the State

¶47 Erma brought claims against the State under the doctrine of
respondeat superior, asserting that the State was vicariously liable for
Cervantes’s acts of battery and negligence. Because the superior court
properly granted summary judgment on those claims, they cannot provide
the basis for vicarious liability against the State. 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.”).

¶48 Erma also claimed direct negligence by the State “in retention,
training, supervision, and unreasonable failure to terminate Cervantes.”
However, the superior court correctly held that Erma could not maintain
her claim for direct negligence because she failed to show Cervantes had
committed a tort. Mulhern v. City of Scottsdale, 165 Ariz. 395, 398 (App. 1990)
(“In order for the employer to be held liable for negligent hiring, retention
or supervision, the employee must have committed a tort.”).3

3 Erma also appears to argue that Ryan v. Napier does not foreclose her

negligence claims against the State for negligent hiring, training, and

14
 JOHNSON v. STATE, et al.
Decision of the Court

¶49 Due to Erma’s failure to establish a viable tort claim against
Cervantes, her claims against the State also fail. The superior court did not
err in granting summary judgment for the State.

III. Loss of consortium claims

¶50 Erma brought loss of consortium claims against both
Defendants. Loss of consortium is a derivative claim that requires a
separate underlying tort claim. Barnes v. Outlaw, 192 Ariz. 283, 286, ¶ 8
(1998) (“[B]ecause loss of consortium is a derivative claim, all elements of
the underlying claim must be proven before the claim can exist.” (internal
citation omitted)). Because none of Erma’s tort claims survive summary
judgment, the court correctly granted summary judgment on her loss of
consortium claim, too. Martin v. Staheli, 248 Ariz. 87, 92, ¶ 17 (App. 2019)
(“[T]he success of a loss-of-consortium claim is dependent on the success of
another claim.”).

CONCLUSION

¶51 We affirm. Defendants may recover costs on appeal upon
compliance with ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

supervision. We do not address this argument because the superior court
did not rely on Ryan v. Napier in granting summary judgment on her
negligent training and supervision claim. Instead, the court held that
Erma’s failure to establish a tort by Cervantes extinguishes her negligent
training and supervision claim against the State.

15