Purdy v. Metcalf
Arizona Court of Appeals
November 8, 2021
JSH Attorneys: Ashley Caballero-Daltrey and Eileen GilBride
The Arizona Court of Appeals recently held that a court may consider a driver’s cellphone usage while operating a commercial truck as part of a “series of events of deliberate bad faith or breaches of duty” that warrant punitive damages.
Hernandez, a residential garbage truck driver, ran a red light and collided with another vehicle, killing its driver and severely injuring its passenger. The driver’s daughter and the passenger sued Hernandez and his employer for wrongful death, alleging a number of theories of negligence and seeking punitive damages.
The truck was equipped with driving controls on both sides of the cab and Hernandez was driving on the right side. During discovery, plaintiffs learned that the company had a policy that a driver operating a truck from the right side of the cab could not exceed 15 mph. Hernandez was driving approximately 51 mph for the 8.5 seconds leading up to the accident. Experts also opined that Hernandez had been using cruise control, although affidavits from the company explained that the company’s trucks could only use cruise control between 19 and 25 mph.
Hernandez had two cellphones: a personal phone and one issued by his employer. The data from both phones had been deleted by the time discovery occurred, but experts determined that there had been substantial data transfers from both cellphones at the time of the collision. Hernandez had also made a call that might have begun before the crash. During his deposition, Hernandez invoked his Fifth Amendment right and refused to answer any questions related to his cellphone use.
Defendants moved for partial summary judgment on the issue of punitive damages. The court granted the motion finding that Hernandez’s invocation of his Fifth Amendment right was not enough by itself to show that he had the requisite “evil mind” for punitive damages because it did not prove that he was distracted or acted intentionally or recklessly. Plaintiffs sought special action relief from the court of appeals.
The court of appeals reversed, finding sufficient evidence in the record from which a jury could award punitive damages and issues of fact that should have precluded summary judgment. Although cellphone use on its own is insufficient to support an award of punitive damages, here the record contained sufficient evidence from which a jury could find that the driver consciously pursued a course of conduct knowing that it created substantial risk of significant harm to others. First, there was factual dispute over the timing of the phone call and whether the data transfers meant Hernandez had been actively using the phones. [The court admonished the employer, a sophisticated corporate entity, for failing to preserve the data and noted that it should not be “rewarded” with summary judgment as a result.] In addition, Hernandez was a professional driver; he was driving a commercial vehicle; he had a history of driving violations; he ran a red light; he was driving in excess of both the speed limit and company policy; he potentially was using cruise control in violation of company policy; and data had been deleted from both of his phones. From these circumstances, said the court, a reasonable jury could find Hernandez had pursued a course of conduct that created a substantial risk of significant harm to others. The court vacated the grant of defendants’ motion for partial summary judgment and remanded the case for further proceedings.
Currently pending before the Arizona Supreme Court is another punitive damage case that will address whether a punitive damage claim requires evidence of evil hand and evil mind, or only evil mind. Watch our law alerts for updates.
Ashley Caballero-Daltrey is a member of the firm’s Appellate Department where she represents clients in federal and state appellate matters and dispositive motions. Before joining JSH, Ashley worked as a law clerk for Vice Chief Justice Ann Scott Timmer of the Arizona Supreme Court. She has extensive experience researching and drafting memos across several different areas of law, as well as completing dozens of research projects and memos in torts, civil procedure, government claims, contracts, and land use.
Eileen GilBride leads JSH’s Appellate Department. She focuses her practice on representing clients in federal and state appellate matters and dispositive motions. She also counsels and assists trial lawyers in the substantive areas of their practices, from the answer stage through the post-trial motion stage. Eileen has handled more than 500 appeals at every level of the state and federal courts, in Arizona and other states, which have resulted in more than 80 published decisions.