McDonald v. Napier (10/18/2017)

October 24, 2017

Arizona Court of Appeals Division Two holds that a police officer may be liable for negligence if the officer’s evaluation of whether to use force falls below the standard of care.

Brian McDonald led police on a car chase, then stopped, exited his car, and placed his hands on top of the car.  As he did so, an officer released a police dog, which bit McDonald.  McDonald sued the officer for negligence.  The trial court denied the officer’s motion for summary judgment, holding that McDonald could proceed under a negligence theory even though the officer had intentionally released the dog.  The jury returned a verdict of $650,000, attributing ninety-five percent of the fault to the officer.  The officer timely appealed.

A split panel of the Court of Appeals affirmed.  In Arizona, an officer may be liable for negligence if the officer’s “process of evaluating whether to use force or how much force to use” falls below the standard of care of a reasonable officer under the circumstances.  The majority reasoned that such a claim is distinct from an intentional tort claim based on the officer’s “subsequent intentional act” of force.  Acknowledging the dearth of Arizona cases on point, the majority relied on a line of District of Columbia cases allowing plaintiffs to pursue both negligence and intentional tort claims such as battery in similar circumstances.

The dissent expressed “doubts” about the proposition that “an intentional use of police force is subject to a negligence claim,” but ultimately concluded that various errors in the trial procedures warranted a new trial.

Chief Judge Eckerstrom authored the majority opinion, in which Judge Conlogue (Cochise County Superior Court judge sitting by authorization) concurred.  Judge Espinosa dissented.