Ryan v. Napier – 8/23/2018

August 29, 2018

Arizona Supreme Court holds that an officer’s intentional use of force cannot constitute negligence.

A motorist 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 intentionally released a police dog, which bit the motorist.  The motorist sued the officer for negligence and the sheriff for vicarious liability.

Before trial, the trial court held that the motorist could pursue a claim for “negligent use of force” even though the officer intentionally released the dog.  The jury then found in favor of the motorist.

A split panel of the Court of Appeals affirmed.  The panel did not address whether the officer’s “use” of force could constitute negligence, but held that the officer’s internal “evaluation” of whether to use force could constitute negligence.

The Arizona Supreme Court reversed.  First of all, negligence and intent are mutually exclusive grounds for liability.  Thus, contrary to what the trial court held, there is no such thing as negligent use of intentional force.

Second, negligence requires an external act (or failure to act), not just an internal evaluation.  Thus, contrary to what the Court of Appeals held, there is no such thing as negligent evaluation of whether to use force.

The appropriate state-law claim in this case would have been an intentional tort such as battery.  And various statutory provisions apply only to intentional tort claims.  For example, if the officer’s act were deemed a felony, the sheriff’s office would generally be immune from damages and would not be required to indemnify the officer.  See A.R.S. §§ 12-820.05(B), 41-621(L).  Also, if the officer’s act was intended to arrest a suspect, the officer would be presumed to have acted reasonably and the sheriff’s office would be presumed to have reasonably trained the officer to perform the act.  See A.R.S. § 12-716(A)(1), (2).  Allowing the motorist to claim negligence would enable him to evade these provisions via clever pleading.

Justice Timmer authored the unanimous opinion.