Summary of Opinion
Plaintiff Ben was driving on Navajo Route 41. He said that he saw a black horse in the road and swerved to avoid it losing control of his car. Two of his five children were thrown from the car and killed. Witness testimony failed to confirm the presence of a horse on or near the roadway. Plaintiff filed a negligence action under the Federal Tort Claims Act alleging that the United States did not properly maintain the road way. Plaintiff filed a motion for partial summary judgment urging that the court, in applying the law of the place, apply the law of the Navajo Reservation. Defendant filed a motion for summary judgment. This court denies the plaintiff’s motion and grants the defendant’s motions stating that the plaintiff had failed to state an issue of material fact.
Text of Opinion
I. FACTUAL BACKGROUND
On February 2, 2002, the Ben family was involved in a single vehicle roll over accident on Navajo Route 41 (NR 41) in which two of their five children were ejected and tragically killed. At the time of the accident, Benson Ben was driving a 1999 Chevrolet Cavalier. The Ben's youngest child sat in the front seat with the father and mother, and the other four children were seated in the back.
While traveling on NR 41 at
approximately 7:45 p.m., just outside of Pinon,
The Plaintiffs thereafter filed a wrongful death action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), alleging that the United States was responsible for the accident due to their failure to properly maintain the right of way on NR 41 within the geographical boundaries of the Navajo Nation. The Defendant denies all allegations of negligence and has filed a Motion for Summary Judgment. The Plaintiff has filed a Motion for Partial Summary Judgment Concerning the Application of the Law of the Place urging this Court to apply Navajo Tribal Law to the wrongful death action instead of Arizona State Law. The Court now issues its ruling on both motions.
II. LEGAL STANDARD AND ANALYSIS
The standard for summary judgment is set forth in Rule 56(c) of the Federal Rules of Civil Procedure. Under this rule, summary judgment is properly granted when, after viewing the evidence in the light most favorable to the non-moving party, no genuine issues of material fact remain for trial. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.1987).
The moving party bears the burden of demonstrating that it is entitled to summary judgment. Mur-ray Mgmt. Corp. v. Founders Title Co., 819 P.2d 1003, 1005 (Ariz.Ct.App.1991). If the moving party makes a prima facie case showing that no genuine issue of material fact exists, the burden shifts to the opposing party to produce sufficient competent evidence to show that a triable issue of fact does remain. Ancell v. United Station Assocs., Inc., 803 P.2d 450, 452 (Ariz.Ct.App.1990). The Court must regard as true the non-moving party's evidence, if it is supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324. However, the non-moving party may not merely rest on its pleadings, it must produce some significant probative evidence tending to contradict the moving party's allegations and thereby creating a material question of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57(1986)(holding that the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).
A. Plaintiff's Motion for Partial Summary Judgment Concerning Application of Law of the Place.
In their motion for partial
summary judgment, the Plaintiffs assert that this Court should apply
Tribal law in determining the
Under the FTCA, the
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
U.S.C. § 1346(b)(1). Since the enactment of this provision in 1948,
have operated under the rule that the “law of the place” refers to the
the state where the negligent act or omission occurred. See, e.g., F.D.I.C.
510 U.S. 471, 478 (1994) (“[W]e have
held that § 1346(b)'s
reference to ‘law of the place’ means law of the state-the source of
substantive liability under the FTCA.”); Miree
433 U.S. 25, 29 n. 4 (1977); Rayonier
Inc. v. United States,
352 U.S. 315, 318-19 (1957); Krutchen
653 F.2d 196, 201 (5th Cir.1981); United
States v. English,
521 F.2d 63, 65 (9th Cir.1975). Courts
consistently reached this conclusion even when the negligent act or
occurred on Indian land located within a state. See LaFramboise
439 F.3d 792 (8th Cir.2006); Red
Lake Band of Chippewa Indians v. United States,
936 F.2d 1320 (D.C.Cir.1991); Seyler
v. United States,
832 F.2d 120 (9th Cir.1987); Bryant
v. United States,
565 F.2d 650 (10th Cir.1977).
this traditional rule regarding the meaning of the “law of the place,”
parties agreed in the Joint Case Management Report (Doc. 8), filed with
Court on January 24, 2005, that
In arguing that Navajo law
should apply, the Plaintiffs contend that the many courts that have
“law of the place” to mean the law of the state, “have taken the wrong
approach.” The question the Plaintiffs present to this Court is whether
the state of
Plaintiffs devote a large portion
of their brief to arguments concerning the “most significant
doctrine adopted by
the plaintiffs' son died due to complications arising from a bacterial
infection. 55 F.Supp.2d at 1295. The plaintiffs brought a FTCA claim
The Plaintiffs urge this Court to follow the Cheromiah court's ruling and reasoning. However, based on the analysis contained below, the Court declines to do so.
First and foremost, the Cheromiah
ruling has been expressly rejected by the District of Arizona in a 2000
v. United States,
147 F.Supp.2d 953 (D.Ariz.2000).
this Court does not find the reasoning in Cheromiah persuasive.
ruling in Bryant, this Court will follow the line of cases
when a negligent act or omission occurred on a federal enclave within a
that state's law and not federal law applies. See, e.g., Shankle
v. United States,
796 F.2d 742 (5th Cir.1986 (acts
federal military reservation); Lutz
v. United States,
685 F.2d 1178, 1184 (9th Cir.1982)(acts
on air force base); see also, Brock
v. United States,
601 F.2d 976 (9th Cir.1979)
relying on this line of cases). Similarly, because the acts here
tribal land located within the State of
The Plaintiffs in Brock
B. Defendant's Motion for Summary Judgment
In their Complaint, Plaintiffs allege that the Bureau of Indian Affairs (BIA) and its employees exercised control over NR 41 and had a duty to maintain the roadway, fencing and gates in a safe condition for the traveling public, including the Plaintiffs. Specifically, the Plaintiffs contend that the Defendant had a duty to a maintain the highway right-of-way fencing and cattle guards so as to preclude the horse from entering NR 41 and presenting a serious hazard to motorists. According to the Plaintiffs, at all material times before the fatal crash of February 2, 2002, the Defendant knew or should have known that the fencing and cattle guards along NR 41 were seriously deficient and did not prevent large animals from entering the right-of-way. The Plaintiffs assert that the Defendant's failure to adhere to its responsibilities and maintain the right-of-way in a reasonably safe condition was negligence and the proximate cause of the crash. The Defendant, in moving for summary judgment, argues to this Court that the Plaintiffs cannot establish negligence; therefore, the case should be dismissed with prejudice.
As noted by the Defendant,
in February of 2002, the BIA's responsibility to maintain the roads
such as NR
41 was based on 25
C .F.R. § 170.3, which stated in part: “Subject to the
funds, the Commissioner shall maintain, or cause to be maintained,
approved roads on the Federal-Aid Indian Road system.” Furthermore, the
regulations defined maintenance as the act of preserving the entire
including surface, shoulders, roadsides, structures, and the necessary
control devices as nearly as possible in the as built condition to
services for the satisfactory and safe use of such roads. 25
C.F.R. § 170.2(h). In addition, under
argument that the Plaintiff is unable to establish that the
In order to establish a breach of the Defendant's duty to maintain the roads, specifically the fences and cattle guards, the Plaintiffs must point to specific acts or omissions of the Defendant that caused their damages. Carrow Co. v. Lusby, 804 P.2d 747, 754 (Ariz.1991).
The Plaintiffs offer the following arguments and evidence in support of their contention that the Defendant breached its duty to keep the road reasonably safe for travel. First, the Plaintiffs maintain that the Defendant had actual or constructive notice of defects in the fencing and cattle guards along NR 41. In support of this claim, the Plaintiffs proffer that by Defendant's own admission, people sometimes cut the fencing and that such action would result in opening the right-of-way. Second, sand or dirt could build up against the fencing and, if high enough, livestock may jump over the fencing and enter the road. Third, cattle-guards adjoining the right of way can fill up in a very short time. Fourth, people use the gates along NR 41 to move cattle, and at times, fail to adequately close those gates thereby allowing livestock to enter the right-of-way.
In further support of their argument that the Defendant breached its duty, the Plaintiffs point the Court to a complaint lodged in July of 1999 where a person reported that her livestock was shot within the right-of-way fence of NR 41 near mile markers three and four. One month later, in August of 1999, another individual notified the BIA that the condition of fences and cattle guards on NR 41 was problematic, specifically noting that the fencing was loose and dangling and the cattle-guard was filled with dirt. This person further complained that the BIA failed to reasonably respond to the problems and did not address the serious concerns she raised. The Plaintiffs admit that the complaints were lodged years before the February 2, 2002 accident and six to seven miles away from the specific crash site; however, the Plaintiffs argue that approximately 21 months after the accident, there was evidence of deficient management along NR 41, including a fence post down, a livestock warning sign down, sand to the top of the fence, a filled in cattle guard, an open gate, a portion fo the fence down, three cows within the right-of-way, and two dead horses between the right-of-way fence and the road. Although Plaintiffs expert visited the site years after the fatal accident, the Plaintiffs contend that his examination still revealed extensive evidence of animals having been on the highway. For example, he located multiple bones from various animals, randomly scattered hoof-prints as well as horse manure.
Based on the foregoing evidence, the Plaintiffs argue that a fact finder could conclude that the Defendant failed to act as a reasonable person would in maintaining the fencing and cattle guards along NR 41. The Plaintiffs remark that when considering the apparently sporadic maintenance, inadequate records concerning exact locations of maintenance activities, complaints about dead animals in the right-of-way, the condition of the fencing and the cattle guards along NR 41 at locations other than the crash site, the known cutting of the fencing, leaving open of gates, piling of dirt along the fencing allowing access over the fence, and the filling of the cattle guards quickly, the Plaintiffs claims should survive summary judgment.
The Defendant, however,
asserts that there is absolutely no evidence that the United States had
notice that a horse was on the
road the evening of the accident nor is there evidence establishing
that a horse was on the road a sufficient
length of time to imply notice. Moreover, the Defendant urges the Court
acknowledge that there is no evidence in this case that the
There is no evidence in the instant case regarding the condition of the fences or cattle guards near the time of the accident. The only complaint about the condition of the fencing and cattle guards on NR 41 was received on August 3, 1999, 30 months prior to the accident. The photos of the fencing and cattle guards were taken in November of 2003 approximately 21 months after the incident. The observations presented to the Court by the Plaintiffs' expert were also made years after the accident. Conversely, during the 24 month period preceding the accident, the Defendant shows that it repaired and/or checked on fencing conditions on 20 occasions and the cattle guards were cleaned out on five occasions. Additionally, there is no evidence in this case of a prior accident involving livestock or horses in the roadway in this area. Even when drawing all reasonable inferences in the Plaintiffs favor, the negligence claim cannot survive summary judgment.
Even if this Court could
find that an issue of material fact remained as to whether the
breached its common law duty, the Plaintiffs also fail to establish
cause. A plaintiff proves proximate cause by demonstrating a natural
continuous sequence of events stemming from the defendant's act or
unbroken by any efficient intervening cause, that produces the injury,
or in part, and without which, the injury would not have occurred. Barrett
v. Harris, 86 P.2d 945, 958 (Ariz.Ct.App .2004). The only evidence
case as to whether there was a horse
on the roadway came from the Plaintiffs themselves. The testimony of
Yellowhair, who was approximately 75-100 feet away traveling toward the
Plaintiffs at the time of the accident, did not see a horse
on the road on February 2, 2002. He only saw the vehicle
swerve off the road and roll over. He testified that he did see a horse the day after the accident, but
it was one half mile northwest of the accident site. Neither the
Mr. Yellowhair knew where the horse
came from, where the horse went,
or who it belonged to. The opinion offered by the Plaintiffs' expert as
the horse appeared on the
roadway is nothing more than speculation. As pointed out by the
could speculate as to a variety of other scenarios where the
Based on the forgoing analysis, this Court concludes that summary judgment in the Defendant's favor is warranted on all Plaintiffs' claims in this case since the Plaintiffs have failed to show that a genuine issue of material fact remains as to whether the Defendant was negligent. As such, the Court finds it unnecessary to address the arguments remaining in the Defendant's motion. Therefore,
IT IS ORDERED that the Plaintiffs' Motion for Partial Summary Judgment Concerning Application of Law of the Place (Doc. 75) is DENIED.
FURTHER ORDERED that the Defendant's Motion for
Summary Judgment (Doc. 82) is GRANTED. The Clerk of Court is ordered to
Return to Top of This Page
Return to Horse/Car Collisions Page