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Badia v. City of Casa Grande3/16/1999
3 action and did not undermine policy or purpose of federal law). But see Williams v. City of Oakland, 915 F. Supp. 1074 (N.D. Cal. 1996) (holding pain and suffering damages, which did not survive under California law, were available to survivors in § 1983 action based on officers' alleged use of excessive force, when deceased plaintiff died more than a year later of causes unrelated to incident). Accordingly, the trial court did not err in concluding that any damages arguably caused by defendants' alleged use of excessive force did not survive Perez's death and in consequently dismissing that aspect of plaintiff's § 1983 claim. We need not and, therefore, do not decide whether § 14-3110 would preclude damages in a § 1983 action for a decedent's pain and suffering if the victim were to die as a result of a constitutional violation.
III. Punitive Damages Claim
The trial court ruled that the defendant officers "have statutory immunity from punitive damages pursuant to A.R.S. § 12-820.04." Plaintiff contends, however, that the individual defendants are liable for punitive damages under § 1983 because they "acted recklessly under federal law." Contrary to the trial court's ruling, § 12-820.04 would not necessarily preclude a punitive damage award under § 1983 against those who commit civil rights violations. See Bass by Lewis; McFadden; Larson v. Wind, 542 F. Supp. 25 (N.D. Ill. 1982); O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981). Because the trial court properly granted summary judgment for defendants on all of plaintiff's § 1983 claims, however, she is not entitled to punitive damages. See Duncan v. Wells, 23 F.3d 1322 (8th Cir. 1994). Moreover, the record in this case would not permit a reasonable trier of fact to find that the officers acted with "evil motive or intent" or "reckless or callous indifference to [Perez's] federally protected right ," a prerequisite to a punitive damage award for a federal civil rights violation. Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632, 651 (1983). See also Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997), and cases cited therein.
IV. State Law Claims
Appellant next contends numerous issues of material fact should have precluded summary judgment on her state law claim that the officers were grossly negligent in processing and disposing of the charges against Perez, releasing her, and permitting her to leave the substation with Murrillo. Section 12-820.02(A)(1), A.R.S., provides that " nless a public employee acting within the scope of the public employee's employment intended to cause injury or was grossly negligent, neither a public entity nor a public employee is liable for . . . he failure to make an arrest or the failure to retain an arrested person in custody." Thus, plaintiff had to present sufficient facts to support a finding or reasonable inference that the officers' alleged acts or omissions on the night in question were at least grossly negligent.
Whether gross negligence exists is generally a fact question for the jury, but it may be resolved on summary judgment if "no evidence is introduced that would lead a reasonable person to find gross negligence." Walls v. Arizona Dept. of Public Safety, 170 Ariz. 591, 595, 826 P.2d 1217, 1221 (App. 1991); see also Orme School. The evidence "must be more than slight and may not border on conjecture." Walls, 170 Ariz. at 595, 826 P.2d at 1221. To establish gross negligence, the claimant essentially must show wanton misconduct that "is flagrant and evinces a lawless and destructive spirit." Scott v. Scott, 75 Ariz. 116, 122, 252 P.2d 571, 575 (1953). See also Williams v. Thude, 188 Ariz. 257, 934 P.2d
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