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Natseway v. City of Tempe8/8/1995
KLEINSCHMIDT, Presiding Judge
During the early morning hours of a day in October 1992, a Mesa police officer became suspicious of a car travelling east on Broadway Road in Mesa. He began following the car, and after observing two traffic violations and learning that the car's insurance had been canceled or had expired, he activated his overhead lights and tried to stop the car. A chase ensued during which the car reached speeds up to eighty-five miles per hour and passed through both green and red lights at several intersections. As the chase continued, the car headed towards Tempe. The pursuit ended when the car ran a red light at the intersection of Guadalupe and Price roads and collided with another car that was travelling south on Price. The driver of the other car, the Plaintiffs' daughter, was killed in the collision.
Defendant Les Gray, a Tempe police officer, had learned of the pursuit in progress by radio and had gone to the intersection of Price and Guadalupe. He parked near the northeast corner of the intersection to observe the pursuit. He did not attempt to block the intersection to prevent cross-traffic from entering the path of the pursuit because that was not his normal practice and because traffic was light. There is some dispute as to how long Officer Gray was at the intersection prior to the accident, but it is generally agreed that he arrived there at least one minute prior to the collision.
The Plaintiffs filed a complaint for wrongful death against the City of Tempe and its officer ("Tempe"), and the City of Mesa and its officer ("Mesa"). The complaint alleged that Mesa was negligent in pursuing the fleeing automobile and that Tempe negligently failed to warn the Plaintiffs' daughter of the approaching pursuit. It also alleged that both cities negligently supervised and trained their officers.
Both Tempe and Mesa denied negligence and named the driver of the pursued car, Jesus Mendoza, as a nonparty at fault. Prior to trial, the Plaintiffs settled with Mesa. Mesa was dismissed from the suit, and Tempe then listed Mesa as a nonparty at fault.
At every stage of the proceedings, the Plaintiffs unsuccessfully argued that Tempe could not compare its negligence with the fault of Mendoza because Mendoza acted intentionally and Tempe had a duty to prevent Mendoza from causing the very incident that resulted in their daughter's death. The Plaintiffs also argued unsuccessfully that Tempe could not compare its fault with that of Mesa because there was insufficient evidence that Mesa was a cause of the collision.
The jury returned a verdict of $5,000,000 in favor of the Plaintiffs. It found that the Tempe officer was three percent at fault; the City of Tempe was seven percent at fault; the Mesa officer was three percent at fault; the City of Mesa was seven percent at fault; and Mendoza was eighty percent at fault. The trial court later reduced the total damages to $1,500,000 and entered judgment against Officer Gray in the amount of $45,000 and against the City of Tempe in the amount of $105,000. The Plaintiffs argue on appeal that Tempe should not have been permitted to compare its negligence with the intentional acts of Mendoza, and that there was insufficient evidence on the issue of Mesa's causation to allow the jury to determine that Mesa was partially at fault.
THE TRIAL COURT WAS CORRECT IN PERMITTING TEMPE TO
COMPARE ITS FAULT WITH THE FAULT OF MENDOZA
The Plaintiffs assert that it is against public policy to allow a negligent tortfeasor to reduce its liability by comparing its negligence to the intentional wrong of another which the tortfeasor had a duty to prevent. There are
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