Harianto v. State

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

HARIANTO HARIANTO, et al., Plaintiffs/Appellants,

v.

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

No. 1 CA-CV 18-0446

FILED 9-24-2020

Appeal from the Superior Court in Maricopa County

No. CV 2015-051925

The Honorable John R. Hannah, Jr., Judge

AFFIRMED

COUNSEL

Zachar Law Firm, Phoenix

By Christopher J. Zachar

Co-Counsel for Plaintiffs/Appellants

The Leader Law Firm, Tucson

By John P. Leader

Co-Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix

By G. Michael Tryon

Co-Counsel for Defendants/Appellees

Fennemore Craig PC, Phoenix

By Douglas C. Northup, Philip L. Brailsford

Co-Counsel for Defendants/Appellees

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which

Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop

joined.

B R O W N, Judge:

¶1 Appellant Harianto Harianto and several of his family

members (collectively, “Harianto”) were involved in a head-on collision

with a wrong-way driver on I-17 in Yavapai County. Harianto sued the

State of Arizona (“the State”), alleging the Arizona Department of

Transportation (“ADOT”) and the Department of Public Safety (“DPS”)

were negligent. The superior court granted summary judgment in favor of

the State on all claims. The issue presented here is whether DPS dispatchers

could properly claim statutory qualified immunity. We address other

issues raised by Harianto in a separate memorandum decision. For the

following reasons, we affirm.

BACKGROUND

¶2 The relevant facts are undisputed. Alan Horan (“Horan”)

was spotted before dawn one morning driving north in the southbound

lanes of I-17 in northern Maricopa County. Southbound motorists began

calling 911 at 4:05 a.m. Callers described Horan as driving lock-armed and

staring straight ahead as if in a trance, unaware of the hazard he was

creating.

¶3 Because Horan was in Maricopa County when the first calls

were received, they were routed to the Metro West district, which extends

north to the southern boundary of Yavapai County. While receiving the

calls, Dispatcher Zeiher, a DPS employee working in that district, alerted

law enforcement officers to respond to the “wrong-way” driver emergency,

which was automatically classified as the “highest priority-type call.”1

1 While Harianto at times mentions “dispatchers,” his briefing focuses

almost exclusively on the alleged negligence of Zeiher, who was primarily

2

HARIANTO, et al. v. STATE, et al.

Opinion

During the emergency, officers responded to the alerts at various times and

locations. DPS Sergeant Sharp was near Anthem when the call was

dispatched about a wrong-way driver. Sharp immediately attempted to

intercept Horan, first at Anthem Way and then Table Mesa Road, but was

unsuccessful. He continued driving north to further respond to the

emergency.

¶4 As Horan approached the boundary between Maricopa and

Yavapai counties, Zeiher contacted the Flagstaff district, which in turn

notified DPS troopers in Yavapai County about Horan. Trooper Schmidt,

who was driving south on I-17 several miles north of Horan’s last known

location, received the call about Horan from Flagstaff dispatch at 4:22 a.m.

Schmidt initiated a traffic break to slow and eventually stop the

southbound traffic with the goal of preventing southbound motorists from

colliding with Horan’s vehicle. Once the traffic was stopped, Schmidt

intended to use his patrol car as a barrier between Horan and the

southbound motorists.

¶5 At around 4:27 a.m., however, a few miles south of where

Schmidt had started the traffic break, Horan’s car collided with Harianto’s

minivan, killing three passengers in the minivan and seriously injuring

another two passengers and the drivers of both vehicles. Horan had

traveled at least 21 miles on I-17 in the wrong direction before the collision.

Police could not determine exactly how, when, or why Horan began driving

the wrong direction, but investigators speculated he may have been

experiencing medical issues.

¶6 Harianto sued the State, alleging that through its agencies, the

State was negligent in (1) failing to take appropriate measures, including

providing reasonable warnings to prevent wrong-way driving and related

accidents, and (2) failing to adopt or implement any law enforcement

standards to prevent such accidents. Following substantial discovery, the

State moved for summary judgment, asserting statutory qualified

immunity precluded liability for the alleged negligence of DPS in handling

the emergency. The superior court granted the State’s motion, finding the

State had statutory qualified immunity for the alleged negligent decisions

DPS personnel made “concerning interdiction of [Horan] on the day of the

collision.” Harianto moved for reconsideration, asserting (1) no qualified

responsible for alerting law enforcement officers about the wrong-way

driver. Thus, although the record suggests several other dispatchers

assisted in handling the emergency, we do not specifically address them in

our analysis because Harianto has not alleged how they were negligent.

3

HARIANTO, et al. v. STATE, et al.

Opinion

immunity exists for 911 dispatcher negligence claims, and (2) summary

judgment was improper, because if the dispatchers had contacted field

officers sooner, they would have likely prevented the collision. The court

denied the motion and this timely appeal followed.

DISCUSSION

¶7 We review the superior court’s grant of summary judgment

de novo, viewing the evidence and reasonable inferences in the light most

favorable to the non-moving party. Ochser v. Funk, 228 Ariz. 365, 369, ¶ 11

(2011). Summary judgment is appropriate if “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). Questions of statutory interpretation,

including the applicability of qualified immunity, also are subject to de

novo review. Smyser v. City of Peoria, 215 Ariz. 428, 432, ¶ 8 (App. 2007).

Judicial construction of governmental immunity statutes “should be

restrained and narrow.” Fid. Sec. Life Ins. Co. v. State Dep’t of Ins., 191 Ariz.

222, 225, ¶ 7 (1998). Governmental liability is presumed unless immunity

clearly applies. See Doe ex rel. Doe v. State, 200 Ariz. 174, 176, ¶ 4 (2001).

¶8 Citing A.R.S. § 12-820.02, the superior court found that

qualified immunity precluded Harianto’s claim relating to dispatcher

negligence. That statute provides:

A. Unless a public employee acting within the scope of the

public employee’s employment intended to cause injury or

was grossly negligent, neither a public entity nor a public

employee is liable for:

1. The failure to make an arrest or the failure to retain an

arrested person in custody.

A.R.S. § 12-820.02. We have previously interpreted subsection (A)(1) to

include the “failure to make an investigatory stop which may or may not

lead to an arrest.” Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 595 (App.

1991).

¶9 Harianto does not contend that Dispatcher Zeiher intended to

cause injury or was grossly negligent. Rather, he argues qualified

immunity under § 12-820.02(A)(1) does not apply to a dispatcher under any

circumstances, and because Zeiher delayed in contacting the Flagstaff

district, she was negligent, making the State liable. Harianto’s argument is

based on Hutcherson v. City of Phoenix (Hutcherson I), 188 Ariz. 183 (App.

1996), vacated, 192 Ariz. 51 (1998). In that case, this court held that

4

HARIANTO, et al. v. STATE, et al.

Opinion

§ 12-820.02 “does not grant qualified immunity to 911 operators.” Id. at 190.

On review, our supreme court vacated Hutcherson I, but Harianto argues

the supreme court’s opinion was meant to vacate only “unrelated portions

of this Court’s Hutcherson [I] opinion.” See Hutcherson v. City of Phoenix

(Hutcherson II), 192 Ariz. 51 (1998).

¶10 We recognize that in Hutcherson II, the supreme court

accepted review of only one issue, which did not involve the 911

dispatcher’s alleged negligence. See id. at 53, ¶ 12. But the supreme court’s

opinion plainly states, “we vacate the opinion of the court of appeals.” Id.

at 57, ¶ 37. And a later decision from this court rejected the notion that

Hutcherson I was controlling or even relevant in assessing 911 dispatcher

immunity, explaining that because the supreme court vacated the opinion,

it has no precedential value. Wertheim v. Pima Cnty., 211 Ariz. 422, 426, ¶ 17

n.2 (App. 2005) (citing Wetherill v. Basham, 197 Ariz. 198 (App. 2000)).

¶11 We must acknowledge, however, that courts have not been

consistent in how they interpret and apply vacated opinions. For example,

other than Wertheim’s explicit rejection of the notion that Hutcherson I has

any continuing validity, other courts have given that case varied treatment.

See, e.g., Spooner v. City of Phoenix, 246 Ariz. 119, 124, ¶ 9 n.4 (App. 2018)

(noting that Hutcherson I was “reversed on other grounds”); Smyser v. City of

Peoria, 215 Ariz. 428, 436, ¶ 24 (App. 2007) (citing Hutcherson I without

reference to any subsequent history); Ogden v. J.M. Steel Erecting, Inc., 201

Ariz. 32, 37, ¶ 23 (App. 2001) (recognizing Hutcherson I was vacated but

relying on its analysis of fault allocation); Hulstedt v. City of Scottsdale, 884

F. Supp. 2d 972, 1017 (D. Ariz. 2012) (citing Hutcherson I as “vacated on other

grounds,” and noting that 911 dispatchers can be held liable for mere

negligence).

¶12 But even if we were inclined to dive into the thorny question

of whether vacated opinions may be appropriately cited for some type of

persuasive value, whether by the parties or a court, we are bound by our

supreme court’s instruction not to cite vacated opinions. See Stroud v. Dorr-

Oliver, Inc., 112 Ariz. 403, 411, n.2 (1975) (“Once an opinion of the Court of

Appeals has been vacated by this court, it is of no force and effect and is not

authority.”); State v. Smyers, 207 Ariz. 314, 318, ¶ 15 n.4 (2004) (“The courts

of this state are bound by the decisions of this court and do not have the

authority to modify or disregard this court’s rulings.”); cf. Michael D.

Moberly, This Is Unprecedented: Examining the Impact of Vacated State

Appellate Court Opinions, 13 J. App. Prac. & Process 231, 246 (2012) (stating

that Stroud has not “prevented litigants from citing vacated Arizona

appellate court opinions in support of their legal arguments or Arizona

5

HARIANTO, et al. v. STATE, et al.

Opinion

courts from relying on those opinions when deciding cases”). Further, even

assuming this situation might be viewed differently, we conclude that more

recent authority has greater persuasive value than Hutcherson I on the

subject of 911 dispatcher liability.

¶13 In Greenwood v. State, 217 Ariz. 438, 442, ¶ 15 (App. 2008), we

addressed whether qualified immunity extended to the activities of DPS

recordkeeping employees under § 12-820.02(A)(1). A woman died in a car

accident caused by a man who had a lengthy criminal record, including

several driving offenses. Id. at 440, ¶¶ 2–3. Her mother and an injured

passenger sued the State, alleging it failed to exercise reasonable care in

maintaining and disseminating the man’s criminal information, and had

the recordkeeping been done properly, he would have been incarcerated at

the time of the accident. Id. at 443, ¶ 17. The plaintiffs argued that qualified

immunity under § 12-820.02(A)(1) did not apply because their allegations

related only to negligent recordkeeping, not the failure to arrest or retain in

custody the man who caused the accident. Id. at 443, ¶ 15. We rejected the

argument, holding that although recordkeeping activities are not included

in the statute’s plain language, the “essence” of the claim was a failure to

arrest or retain. Id. at 444, ¶ 22. We reasoned that the form of the plaintiffs’

allegations need not mimic the statute to trigger its applicability; otherwise,

“it would encourage plaintiffs to purposely plead their claims to avoid the

application of the statute.” Id. at 444–45, ¶ 22.

¶14 To determine the essence of Harianto’s allegations against

Zeiher, we look to Harianto’s amended complaint. But the allegations in

the amended complaint, even liberally construed, do not address his theory

of dispatcher liability. Instead, over the State’s objections, Harianto’s

allegations against Zeiher were raised much later in the litigation. A

supplemental disclosure statement included these opinions from

Mr. Robinson, a police practices expert:

Mr. Robinson is expected to testify that Flagstaff dispatchers

had an officer, Officer Schmidt, located in the immediate area

of [Horan] when contacted. That had Officer Schmidt been

contacted at 4:05 a.m., he would have had 17 minutes to set

up a traffic break, stop sticks, Class C Roadblock or other

proactive measures to, 1) stop [Horan] , or 2) stop southbound

traffic on I-17 which would have included the Harianto’s

vehicle.

....

6

HARIANTO, et al. v. STATE, et al.

Opinion

Mr. Robinson is expected to testify that it was neglectful for

Phoenix DPS dispatchers to wait 17 minutes before contacting

DPS Flagstaff dispatchers and/or Officer Schmidt as [Horan]

was headed directly towards him while travelling

northbound on I-17. That communication between

neighboring dispatch areas is paramount to ensure public

safety.

In his motion for reconsideration, Harianto stated in part that Zeiher

“negligently handled this incident by not timely contacting Officer

Schmidt, thus delaying his arrival, allowing the subject collision to occur.”

¶15 Consistent in these allegations is the theory that had Zeiher

contacted Schmidt earlier, he would have been able to stop Horan before

the collision by setting up a traffic break, using stop sticks, implementing a

roadblock, or other proactive measures. The purpose of those measures

would have been to stop the car from moving any further in the wrong

direction. Thus, the essence of Harianto’s allegations is that Zeiher’s delay

in contacting Schmidt resulted in a failure to prevent the collision by

stopping or arresting Horan before it occurred. And an alleged failure to

stop or arrest plainly falls under § 12-802.02(A)(1), meaning Zeiher has

qualified immunity against Harianto’s allegations that she negligently

handled the emergency. See Walls, 170 Ariz. at 595.

¶16 Further, just as Greenwood determined there was no

meaningful distinction between the immediate activities of law

enforcement officers and the recordkeeping duties that underlay law

enforcement activities, the duties of 911 dispatchers are integrated into law

enforcement investigation and arrest processes—and certainly to a much

greater extent than recordkeepers. See Greenwood, 217 Ariz. at 444, ¶ 21.

The immediate action required by officers to make an arrest or an

investigatory stop is often based on the actions of 911 dispatchers. Indeed,

in this case, the officers received updates on the wrong-way driver based

on the information relayed from observers to dispatchers. Thus, consistent

with Greenwood and Wahl, qualified immunity protects Zeiher under § 12-

802.02(A)(1).

7

HARIANTO, et al. v. STATE, et al.

Opinion

CONCLUSION

¶17 Harianto’s claims against the DPS dispatchers for negligently

mishandling the emergency calls are precluded based on statutory

qualified immunity. We therefore affirm the superior court’s judgment.

AMY M. WOOD • Clerk of the Court

FILED: AA

8