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Wertheim v. Pima County8/31/2005
Sarah Wertheim, the widow of Carter Wertheim and the personal representative of his estate, brought this wrongful death action against Pima County and Pima County Sheriff Clarence Dupnik (collectively, the County) and the City of Tucson. The trial court granted defendants' motion for judgment as a matter of law following Wertheim's presentation of evidence at trial. She appeals. We review the court's ruling de novo to determine whether the evidence and reasonable inferences therefrom, viewed in the light most favorable to Wertheim, demonstrate that no material issues of fact existed and that the County and the City were entitled to judgment as a matter of law. See Crackel v. Allstate Ins. Co., 208 Ariz. 252, 92 P.3d 882 (App. 2004). We affirm.
Wertheim presented the following evidence. On July 29, 2001, Kenneth Dillard shot and killed Carter Wertheim at the home of Dillard's estranged wife, Shari Dillard, and then killed himself. Kenneth Dillard was a Tucson Police Department (TPD) detective assigned to the Metropolitan Area Narcotics Trafficking Interdiction Squad (MANTIS) and was supervised by both TPD and the Pima County Sheriff's Department (PCSD). Dillard's immediate supervisor was TPD Sergeant Robert Martin. In the MANTIS chain of command, Martin reported to PCSD Lieutenant Ron Benson, and Benson reported to MANTIS commander and TPD Captain Robert Shoun. Dillard was not on duty at the time of the shooting, but he shot Carter with a gun he used as his primary on-duty weapon. The gun was not a TPD-issued weapon but was Dillard's personal property that he had purchased and that TPD had approved for Dillard to use on duty.
On May 27, 2001, approximately two months before the shooting, Dillard had entered the Wertheims' residence in the middle of the night and had found his wife and Carter asleep in bed together. Dillard confronted the two. He yelled and screamed at the couple and then struck himself violently over the head with a large, heavy flashlight, causing himself serious injury. After PCSD responded to Shari's 911 call, Dillard was taken to a hospital for emergency medical treatment and then was voluntarily admitted to a psychiatric hospital.
PCSD reported the incident to TPD, and TPD ordered Dillard to undergo a fitness-for-duty evaluation. When Dillard was released from the psychiatric hospital, TPD granted him leave from work, and he spent approximately four weeks with family members out of state. When he returned, TPD placed Dillard on limited duty pending the outcome of the evaluation. No criminal charges were pursued against Dillard as a result of the May 27 incident.
On July 13, 2001, Shari was granted an order of protection against Dillard. On the same day, Carter was granted an injunction from harassment by Dillard. The order of protection, if served, would have required Dillard to "not possess, receive and/or purchase firearms." The injunction was served on Dillard; the order of protection was not.
On Sunday, July 15, Shari contacted Lieutenant Benson and asked for his "assistance in serving" the order of protection. She also apparently told Benson that Dillard had been stalking her. Benson did not question Shari about the details of the order and did not request or obtain a copy of it, but he told her that he "would help her to the extent could." Benson then contacted Sergeant Martin and asked if TPD procedures required Dillard to "stay at one place" until the process server arrived or if TPD was obligated to assist Shari in having the order served on Dillard. Martin told Benson no such policy or obligation existed, and Benson did nothing else about the order.
After the May 27 incident, PCSD had
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