Ericson et al v. Phoenix, City of et al

Filing 31

ORDER that Defendants' Motion to Dismiss Negligence Claim (Doc. 11 ) is GRANTED. Signed by Senior Judge James A Teilborg on 12/19/2014.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Yolanda Ericson, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-14-01942-PHX-JAT

Phoenix, City of, et al.,

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Defendants.

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Pending before the Court is Defendants’ Motion to Dismiss Negligence Claim,

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(Doc. 11). The Court now rules on the motion.

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I.

BACKGROUND

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This case arises from an altercation between City of Phoenix police officers and

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Miguel1 Ruiz (“Decedent”) on July 28, 2013. (Doc. 7 at 7). As a result of the altercation,

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Decedent died. (Id. at 9). Plaintiffs allege that the City of Phoenix police officers used

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excessive force and the use of such force caused Decedent’s death. (Id. 10–13). Plaintiff,

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Yolanda Ericson,2 is Decedent’s mother, beneficiary, and representative of his estate. (Id.

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at 3). She also acts on behalf of Decedent’s minor daughter, A. R. (Id.). Plaintiff, Canon

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Ruiz, is Decedent’s son. (Id.). Defendants are the City of Phoenix and the individual

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police officers involved in the altercation. (Id.). Plaintiffs’ Complaint presents four claims

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The Court notes that the parties have referred to Miguel Ruiz as “Michael”
throughout their correspondence and briefing with the Court.
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The Court spells Ericson the same way it is spelled in the caption, but notes that
Plaintiffs have spelled the name differently (Erickson).

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for relief, including common law negligence and statutory wrongful death pursuant to

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A.R.S. §§ 12-611–13. (Id. at 14, 17). On September 30, 2014, Defendants filed a motion

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requesting the Court to dismiss Plaintiffs’ common law negligence claim under Federal

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Rule of Procedure 12(b)(6). (Doc. 11).

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II.

LEGAL STANDARD

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The Court may dismiss a complaint for failure to state a claim under Rule 12(b)(6)

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if the claim lacks a cognizable legal theory or there are insufficient facts to support a

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cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990). To survive a 12(b)(6) motion for failure to state a claim, a complaint must meet

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the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the

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claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice

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of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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Although a complaint attacked for failure to state a claim does not need detailed

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factual allegations, the pleader’s obligation to provide the grounds for relief requires

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“more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). The factual

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allegations of the complaint must be sufficient to raise a right to relief above a

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speculative level. Id.

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To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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which, if accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Facial plausibility

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exists if the pleader pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not

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equal “probability,” but plausibility requires more than a sheer possibility that a

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defendant acted unlawfully. Id. “Where a complaint pleads facts that are ‘merely

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consistent’ with a defendant’s liability, it ‘stops short of the line between possibility and

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plausibility of entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 557).

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In deciding a motion to dismiss under Rule 12(b)(6), a court must construe the

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facts alleged in the complaint in the light most favorable to the drafter of the complaint

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and the court must accept all well-pleaded factual allegations as true. See Shwarz v.

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United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, courts do not have to

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accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478

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U.S. 265, 286 (1986).

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III.

ANALYSIS

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Defendants assert that Plaintiffs’ negligence claim should be dismissed because

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“simple negligence . . . in tort [is not a valid basis] for recovering the type of loss of

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consortium and other damages” that Plaintiffs seek. (Doc. 11 at 4). Rather, such “a cause

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of action exists only by virtue of the Arizona Wrongful Death Act.” (Doc. 16 at 6).

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Plaintiffs argue that it is too early in the litigation to determine whether Defendants were

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negligent or grossly negligent and that any potential “discrepancies can be solved with

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proper jury instructions.” (Doc. 15 at 5). Alternatively, Defendants contend that “Arizona

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courts have established a common-law immunity from mere negligence for police

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officers.” (Doc. 11 at 3).

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There is no common law right of action for wrongful death. See Helenar v.

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Superior Court In & For the Cnty. Of Maricopa, 504 P.2d 928, 930 (Ariz. 1972);

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Solomon v. Harmon, 489 P.2d 236, 238 (Ariz. 1971); In re Lister’s Estate, 195 P. 1113,

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1113 (Ariz. 1921); see also Covey Gas & Oil Co. v. Checketts, 187, F.2d 561, 562 (9th

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Cir. 1951) (“Recovery for damages from death by such negligence did not exist in the

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common law at the time of the adoption of the Constitution of the United States.”).

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Rather, the right of action for wrongful death is purely statutory. Gomez v. Leverton, 509

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P.2d 735, 737 (Ariz. Ct. App. 1973). “Arizona’s wrongful death act, A.R.S. § 12-611,

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confers an original and distinct claim for the damages sustained by named beneficiaries.”

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Huebner v. Deuchle, 514 P.2d 470, 470–71 (Ariz. 1973). Under Arizona’s wrongful

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death act, a plaintiff may recover damages for “loss of love, affection, companionship,

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consortium, personal anguish and suffering.” Vasquez v. State, 206 P.3d 753, ¶ 16 (Ariz.

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Ct. App. 2008) (quoting Mullen v. Posada Del Sol Heath Care Ctr., 819 P.2d 985, 986

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(Ariz. Ct. App. 1991)).

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Plaintiffs’ negligence claim amounts to a wrongful death claim. Plaintiffs allege

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that Defendants’ negligence caused Decedent’s death, and as a result, Plaintiffs “have

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been deprived of the continued companionship and familial society of their son and/or

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father and have suffered and will continue to suffer in a future loss of love, affection,

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companionship, care, protection and guidance.” (Doc. 7 at ¶ 109). In Arizona, however,

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damages for the negligent killing of a human being may not be brought under a common

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law negligence claim. See Helenar, 504 P.2d at 930. Instead, the Arizona wrongful death

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act, A.R.S. §§ 12-611–13, provides the exclusive remedy for wrongful death claims.

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Huebner, 5514 P.2d at 549–50. Therefore, Plaintiffs’ negligence claim is dismissed for

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failure to state a claim.

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Having held that Plaintiffs may not pursue their negligence claim, the Court does

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not reach the issue of whether Arizona law enforcement officers may be held liable for

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simple negligence.

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IV.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that Defendants’ Motion to Dismiss Negligence Claim

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(Doc. 11) is GRANTED.
Dated this 19th day of December, 2014.

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