The Arizona Court of Appeals found using a cell phone while driving at the time of an accident resulting in a wrongful death or severe injuries can support a claim for punitive damages. Plaintiffs must establish evidence of cell phone use and other evidence the driver was “consciously pursuing a course of conduct knowing it creates a substantial risk of significant harm to others.”[i]
On August 5, 2019 at approximately 11:11 a.m., a garbage truck driver was speeding and ran a red light, causing a collision with a sedan. The collision killed the driver of the sedan and severely injured the passenger. The family of the deceased brought a wrongful death action against the truck driver and garbage truck company, alleging claims for negligence and punitive damages.
Discovery revealed the garbage trucks are operated from both the left and right side of the cab. However, the employee policy only permits the garbage truck to be operated from the right side of the cab during trash pickup, and while operating from the right side of the cab, the garbage truck should never exceed fifteen miles per hour (“mph”).
The truck driver had a personal cell phone and a work phone in his possession at the time of the collision. Upon inspection at the scene of the collision, the police officer identified a call to the truck driver’s supervisor at 11:10:35 a.m. The truck driver stated he made a call to his supervisor to report the collision. However, by the time discovery commenced, the data on both cell phones was deleted. Since the truck driver was charged with two misdemeanors arising from the collision, he invoked the Fifth Amendment to the United States Constitution, refusing to answer any questions related to his cell phone usage at the time of the collision during his deposition.
Defendants filed a motion for partial summary judgment on the issue of punitive damages, contending there was not sufficient evidence to persuade the jury the truck driver acted with an “evil mind,” and running a red light slightly over the speed limit is negligence at best.[ii] The motion also stated there was insufficient evidence to establish the truck driver was using his cell phone at the time of the collision, and even if he was, they argued cell phone usage was insufficient for punitive damages.
In opposition to the motion for partial summary judgment, plaintiffs argued there was sufficient evidence to establish the driver was using a cell phone at the time of the collision based upon data collected from the scene. This included the estimated time the collision took place, the time the truck driver placed a call to his supervisor, information related to data usage on the truck driver’s phone, and evidence the truck driver was using cruise control at the time of the collision. Plaintiffs argued evidence of cell phone usage along with several other factors, such as speeding, reckless driving, statutory violations, destruction of evidence, and an unsafe driving record, all supported a claim for punitive damages.
After oral argument, the judge found the plaintiffs had not met their burden of showing they were entitled to punitive damages, and therefore granted defendants’ motion for partial summary judgment on the issue of punitive damages.
Appellate Court Analysis
The plaintiffs sought special action with the Court of Appeals arguing the trial judge erred by granting the motion for partial summary judgment because the evidence was not weighed and viewed in the light most favorable to the plaintiffs. The Court of Appeals accepted jurisdiction.
The Court determined the parties presented competing evidence related to speeding, whether cruise control was engaged, and whether the truck driver was using his cell phone, which raises a genuine issue of material fact. The Court also opined the defendants’ failure to preserve cell phone data should not be rewarded with dismissal of plaintiffs’ punitive damages claim based on the absence of that data.
Since the Court found a genuine issue of material fact as to the truck driver’s cell phone use, the Court then moved on to determine whether plaintiffs were in possession of clear and convincing evidence to establish punitive damages.
The Court considered the following factors to determine whether plaintiffs were in possession of sufficient evidence to establish the truck driver acted with the requisite evil mind for punitive damages:
1. The truck driver was operating a twenty-five-ton garbage truck wherein his conduct resulted in death and severe injuries;[iii]
2. The truck driver was charged with two criminal misdemeanors as a result of his conduct;[iv]
3. The truck driver had a history of driving violations, including prior collisions while operating a garbage truck;[v]
4. Destruction of data evidence from the truck driver’s phones;[vi] and
5. Competing evidence the truck driver was driving recklessly for running the red light while speeding, using cruise control, and operating the truck from the right side in violation of the employee policy raises genuine issues of material fact.
Viewing the facts and reasonable inferences in the light most favorable to the plaintiffs and based on the evidence presented, the Court found a reasonable jury could find by clear and convincing evidence the truck driver “consciously pursued a course of conduct knowing…it created a substantial risk of significant harm to others.”[vii]
The holding in this case does not mean punitive damages will always be found in matters where there is clear and convincing evidence the at-fault driver was using a cell phone at the time of the accident. Rather, it is one more factor to take into consideration when evaluating whether punitive damages could come into play. Although cell phone use alone is not sufficient to establish punitive damages[viii], in any serious injury motor vehicle accident case, it is prudent to determine whether a cell phone was in use at the time of the collision to properly evaluate the credibility of claims for punitive damages.
[i] Purdy as Tr. of Survivors of Jones v. Metcalf In & For County of Pima, 2 CA-SA 2021-0039, 2021 WL 5176732, at *6 (App. Nov. 8, 2021).
[ii] Id. at *2.
[iii] Id.at *6 citing Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 497 (1987)(severity of harm is a relevant factor in awarding punitive damages).
[iv] Id. citing see Puz v. McDonald, 140 Ariz. 77, 78-79 (App. 1984)(criminal sanctions factor to consider in award of punitive damages).
[v] Id. citing Jones v. Manhart, 120 Ariz. 338, 341 (App. 1978)(punitive damages properly submitted to jury in dog-bite case based on dog’s history and owner’s continued retention).
[vi] Id. citing Hawkins, 152 Ariz. at 497 (destruction of evidence relevant to determination of punitive damages).
[vii] Id. at *6.
[viii] See Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz. 179 (App. 2001).