Even before the pandemic closed courthouses, litigation backlogs were on the rise. The objective then and now:  increase efficiency without sacrificing integrity. One can take heart from knowing that, within the hallowed tradition and formality of our legal system, a venerable mechanism exists for relatively speedy and just dispositions of lawsuits.

A summary judgment is a ruling entered by a trial judge for one party and against another party without a full trial. Summary judgments may be issued on all or some issues in a case. To access this procedure, a judge must find that no essential facts are disputed and that the party seeking the judgment has the law in its favor. In other words, a summary judgment is inappropriate if the judge must evaluate the credibility of witnesses with different versions of the circumstances, weigh the quality of evidence, or choose between clashing interpretations of what transpired. 

Some judges can be more eager than others in clearing their dockets with summary dispositions. If and when these rulings overstep the bounds of judicial propriety – due to wrong calls on the law (less often), the facts (more often), or both – appeals courts will reject lower court decrees and send the cases back for trial.

Isidro Rosas Hernandez was employed by Republic Services as a residential collection truck driver on August 5, 2019, when he was driving eastbound on Tangerine Road in the town of Oro Valley, a suburban community located six miles north of Tucson, Arizona.   

Margery Jones, had stopped her Honda Accord on North Innovation Market Drive at the intersection of Tangerine Road. Her husband, John Bross, was in the front passenger seat.  After the light for northbound traffic on North Innovation Market Drive turned green, Jones proceeded straight. Hernandez ran the red light, continuing into the intersection and colliding with Jones's car. The time of the crash was shortly after 11:00 a.m.  Bross was severely injured, and Jones was pronounced dead at the scene. 

Hernandez was driving a Peterbilt truck with a gross vehicle weight of nearly 50,000 pounds and equipped with complete sets of driving controls on both sides of the cab.  When the vehicles collided, Hernandez was using the controls on the right side.         

Two months later, Jones's daughter, Amy Purdy, and Bross filed a wrongful-death lawsuit in Pima County Superior Court against Republic and Hernandez, alleging negligence; negligent hiring, training, supervision, and retention; and negligent infliction of emotional distress.  The suit also sought punitive damages, which represent redress beyond what is necessary to compensate a plaintiff for losses and are intended to penalize a defendant for a serious wrong or outrageous conduct. 

Pre-trial discovery is a compulsory exchange of information by the parties about a case by means of written questions and answers, production of documents, requests for admissions, and depositions.  Discovery from non-parties is accomplished using subpoenas.  Here, the process uncovered some disturbing facts.  

According to Republic's employee policy, operating the truck from the right side of the cab is permitted only for trash pickup when the speed should never exceed 15 miles per hour. For good measure, the truck had a decal affixed near the right door showing the maximum allowable speed. Although the speed limit for Tangerine Road at the site of the collision is 45 miles per hour, Hernandez was driving 51 miles per hour in the seconds leading up to the collision.

Hernandez had two cell phones in his possession at the time of the crash – one for personal use and the other issued by Republic. At the collision scene, an Oro Valley police officer inspected the personal phone, checking the call and text logs to see if Hernandez had any calls or messages at the time of the collision. The phone showed a call to Hernandez's supervisor, Jose Flores, at 11:10:35 a.m. Flores, who had arrived at the scene, explained to the officer that Hernandez had called him to report the collision.

The police returned Hernandez's personal phone. Months later, when he was asked to turn it over for the lawsuit, all the data had been deleted. As for Hernandez's work-issued cell phone, Flores took it and placed it in his desk drawer at the office. The phone's service was turned off due to inactivity, and, when Flores changed positions, his replacement sent the phone back to the service provider after finding it in the desk drawer. Republic's legal counsel was able to locate the phone and have it returned, but all the data from that phone had been deleted as well.         

Hernandez was charged with two counts of violating a state law that transforms a civil traffic violation into a criminal misdemeanor when the infraction causes serious physical injury or death.  At his deposition, Hernandez invoked the Fifth Amendment to the U.S. Constitution, refusing to answer any questions related to his cell phone usage at the time of the collision.

In April 2021, Republic filed a motion for partial summary judgment on the issue of punitive damages. Under Arizona law, punitive damages may be assessed against a wrongdoer only where a plaintiff, by clear and convincing evidence, shows that a defendant acted with an “evil mind” – that is, “intended to injure the plaintiff” or was “consciously aware of the wrongfulness or harmfulness of the conduct and yet continued to act in the same manner in deliberate contravention to the rights of the victim.” 

The company argued there was no evidence that Hernandez acted with such a state of mind. Specifically, the defendants asserted, "Running a red light at a speed slightly over the speed limit is nothing more than negligence." In addition, they maintained there was insufficient evidence to prove that Hernandez was on a cell phone and, even if he were, cell phone use alone is insufficient for punitive damages.     

Opposing the motion, the plaintiffs argued there was ample evidence that Hernandez was using a cell phone while he ran a red light at high speed. They pointed out that an Oro Valley Police Department report placed the crash between 11:10:51 and 11:10:59 a.m., and Hernandez had phoned Flores at 11:10:35 a.m. – a call that lasted until 11:11:45 a.m. Plaintiffs also observed that there had been "substantial" data transfers on both of Hernandez's cell phones that morning, including at the time of the collision.  

To further support their claim that Hernandez had been using his phone, the plaintiffs offered the affidavit of an expert who expressed an opinion that Hernandez had been operating the truck on cruise control at the time of the collision. Because the truck was "traveling at a constant 51.45 mph in the 8.5 second period prior to impact," the expert concluded that Hernandez must have set the cruise control at that speed.

In addition, the plaintiffs asserted that, even if cell phone use alone did not support punitive damages, "numerous other factors” did so, including speeding, running a red light, causing a severe crash, reckless driving, statutory violations, destruction of evidence, and his dangerous driving history.         

In reply, the defendants disputed that Hernandez had been on the phone with Flores at the time of the collision, pointing out that a 9-1-1 call reporting the collision came in at 11:10:49 a.m. They also provided an affidavit from Republic’s Fleet and Equipment Manager who stated that "[c]ruise control on the entire Republic fleet of Peterbilt trucks is disabled and only operable between 19-25 mph."         

After considering the arguments from both sides, Judge D. Douglas Metcalf granted the motion for partial summary judgment.  He explained that Hernandez's invocation of the Fifth Amendment "is not enough, by itself, to prove that he was distracted or did this intentionally or recklessly." He further ruled that the Oro Valley Police Department report would not be admissible at trial to show the time of the collision because "[t]here's no foundation as to where that number came from."  He found no evidence the collision had occurred after Hernandez initiated the call with Flores, and he concluded that plaintiffs had not met their burden of showing they were entitled to punitive damages by clear and convincing evidence.  Blocked from claiming punitive damages, the plaintiffs appealed the ruling.  (Judge Metcalf was named as a respondent only for technical reasons. The real parties in interest were Republic and Hernandez.)

Appeals courts, as a rule, accept cases for review only where a trial judge has handed down a final judgment, and very seldom where the issue involves a pre-trial ruling, such as an order granting or denying a partial summary judgment.  Here, however, the appellate panel saw an opportunity to avoid a waste of time and money.  “Addressing the issue of punitive damages now will likely prevent a second trial after appeal,” the panel said.  “Moreover, the issue of whether punitive damages are recoverable in a lawsuit stemming from a motor-vehicle collision caused by a driver distracted by a cell phone is an issue of first impression that is likely to recur.”

On appeal, the plaintiffs argued that the call logs, evidence that Hernandez's phones were using large volumes of data, and Hernandez's refusal to answer questions about phone use all show that Hernandez was using his phones during the fatal crash. In addition, they asserted that the case involved other factors that "created a heightened risk of a serious crash," plus the defendants had destroyed relevant evidence.  Thus, they maintained, the issue of punitive damages should be considered by the jury.

Under Arizona law, using a cell phone while driving, by itself, will not justify punitive damages.  “However, under certain circumstances, an individual who is using a cell phone while driving may manifest an ‘evil mind’ for purposes of punitive damages by consciously pursuing a course of conduct knowing that it creates a substantial risk of significant harm to others,” the opinion noted.

Contradicting Judge Metcalf, the appeals court determined that the plaintiffs’ evidence of Hernandez's cell phone use was not mere speculation.  “The record establishes Hernandez used both of his cell phones multiple times on the morning of the accident,” the panel stated.  “The parties, however, dispute whether Hernandez's call to Flores . . . was during or after the collision, and they rely on conflicting reports of when the collision occurred. * * * [P]laintiffs also presented evidence that data transfers had occurred on Hernandez's cell phones at the time of the collision. An expert opined that the data transfers were ‘consistent with active usage by’ Hernandez, pointing out that he may have been using an app or browsing the internet.  Although defendants presented competing evidence – specifically, that ‘[d]ata usage will occur on a phone even without the owner of the phone actively using [it]’ – that raises a genuine issue of material fact concerning whether Hernandez had been using his phone when he ran the red light.”         

The appellate judges were critical of Republic’s failure to observe standard litigation protocol, particularly to preserve evidence which it knows or should know is or may be relevant in the action, is or may be calculated to lead to the discovery of admissible evidence, is or may be reasonably likely to be requested during discovery, and/or is or may the subject of a discovery request.  “It is difficult to believe that Republic – a sophisticated corporate entity – would not have been aware of these requirements,” said the panel.  “Further, even assuming defendants inadvertently failed to preserve the data on both cell phones, they should not, in effect, be rewarded with summary dismissal of plaintiffs' punitive-damages claim because plaintiffs' expert lacked the necessary information to fully form his opinions.”         

The plaintiffs further contended that Hernandez’s refusal to answer questions about phone use strongly suggested that his responses would be damaging.  The defendants disagreed.  Again, the appeals court sided with the plaintiffs:  “[D]rawing of legitimate inferences from the facts are jury functions, not those of a judge.  *  *  *    [T]he parties  presented competing evidence on this issue, and the judge erred by weighing it.”

After finding a debatable issue as to Hernandez's cell-phone use, the appeals court next considered whether plaintiffs had clear and convincing evidence that Hernandez acted with the requisite "evil mind."  On this issue, disputed facts were abundant.

Under Arizona law, punitive damages may be awarded in higher amounts against employers to encourage them to closely monitoring and control of their employees. Severity of harm, criminal sanctions and concealment of misconduct are also relevant. Hernandez, a professional driver, was at the wheel of the 25-ton refuse truck. As a result of his conduct, Jones died and Bross suffered severe injuries. Hernandez was charged with two criminal misdemeanors.  The plaintiffs also unearthed his history of driving violations, including failing to stop for a red light in 2013 and crashing one Republic garbage truck into another in 2003. What’s more, all the data was deleted from both of Hernandez's cell phones.

Plaintiffs also contended that Hernandez was driving recklessly because he ran a red light while speeding, using cruise control, and operating the truck from the right-side controls, in violation of Republic's express policy. Although the parties agreed that Hernandez ran a red light and that he was speeding, they disagreed on how much he was speeding. The company claimed it was six miles per hour over the limit (51 mph vs. 45 mph) and further asserted that “driving from the right side of the truck did not affect the collision" because there were no obstructions in Hernandez's line of sight.  Because Hernandez was driving from the right side of the truck and was forbidden to exceed 15 mph, the plaintiffs maintained he was speeding by more than 35 miles per hour.  

The parties also disputed whether Hernandez was using cruise control. The plaintiffs offered an expert opinion that Hernandez's driving was consistent with "having the cruise control engaged" based on the steady speed of the truck.  In response, the company provided an affidavit of its fleet manager that cruise control is disabled on its Peterbilt trucks and operable only at low speeds.  “[A]s plaintiffs point out, the manager's affidavit discusses the fleet generally without any specific mention of the truck involved in this collision,” noted the appeals court. “These disputes, therefore, raise genuine issues of material fact.”         

 “[T]he circumstances presented here – including the cell-phone use, the running of the red light, the speeding, the driving from the right side of the truck, the use of cruise control, and Hernandez's status as a professional driver – constitute a series of events of deliberate bad faith or breaches of duty,” the opinion concluded. “Thus, on the record before us, a reasonable jury could find by clear and convincing evidence that Hernandez consciously pursued a course of conduct knowing . . . it created a substantial risk of significant harm to others."          

The appeals court overturned the partial summary judgment in favor of Republic and Hernandez, sending the case back to the trial court for further proceedings.

Purdy v. Metcalf and Republic Services of Arizona Hauling, LLC, et al, No. 2 CA-SA 2021-0039, Ariz. Ct. App., Div. Two, Sept. 24, 2021.