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Badia v. City of Casa Grande3/16/1999
1349 (1997); Luchanski v. Congrove, 285 Ariz. Adv. Rep. 5 (Ct. App. December 22, 1998). As the court in Walls stated:
"A party is grossly or wantonly negligent if he acts or fails to act when he knows or has reason to know facts which would lead a reasonable person to realize that his conduct not only creates an unreasonable risk of bodily harm to others but also involves a high probability that substantial harm will result." Walls, 170 Ariz. at 595, 826 P.2d at 1221.
In this case, the trial court found:
" here is no proof that the officers on duty that night had any actual knowledge of the violent relationship between Ms. Perez and Mr. Murrillo; moreover, there is no evidence that those officers actually saw either Mr. Murrillo's alleged intoxication or the alleged fight in the parking lot when Mr. Murrillo appeared to pick her up. Therefore, they cannot be charged with gross negligence for releasing her to him."
"In challenging that ruling, plaintiff contends " he officers and their agents were presented with a multitude of facts from which they knew or should have known presented a high risk of physical harm to Ida Perez," and that "there is abundant evidence which would lead a reasonable person to find gross negligence from the police's failure 'to serve and protect'" Perez. She also asserts that the trial court erroneously applied an "objective/actual knowledge standard . . . without regard to what a 'reasonable person' would have known." We find plaintiff's arguments unpersuasive."
Relying on her toxicology expert's opinion that Perez's blood alcohol level was between .24 and .26 percent when she left the substation, plaintiff contends defendants were grossly negligent in releasing her in that condition. Plaintiff also relies on her police procedures expert's report, in which he opined that the police department and defendant officers grossly violated "generally accepted police custom and practice" in several respects, proximately causing Perez's death. Neither the expert opinions nor the factual allegations upon which they are based, however, create a genuine issue of material fact on plaintiff's gross negligence claim in this case.
The record does not establish, nor could a trier of fact reasonably infer, that Perez's sobriety level or defendants' other alleged violations of police custom and practice proximately caused Murrillo to attack Perez, which resulted in her death. Sheer speculation is insufficient to establish the necessary element of proximate cause or to defeat summary judgment. See Flowers v. K-Mart Corp., 126 Ariz. 495, 616 P.2d 955 (App. 1980); Shaner v. Tucson Airport Auth., Inc., 117 Ariz. 444, 573 P.2d 518 (App. 1977).
Moreover, the police procedures expert's opinions are neither binding nor determinative. Expert opinions, without more, do not necessarily render a plaintiff's allegations of gross negligence triable issues of fact. See Kemp v. Pinal County, 13 Ariz. App. 121, 474 P.2d 840 (1970). That is particularly so when, as here, the expert's opinions on the issues of gross negligence and causation are largely conjectural and conclusory. See Florez v. Sargeant, 185 Ariz. 521, 526, 917 P.2d 250, 255 (1996) (expert "affidavits that only set forth ultimate facts or Conclusions of law can neither support nor defeat a motion for summary judgment").
In support of her gross negligence claim, plaintiff also contends, without support in the record, that the police officers witnessed the "physical altercation" between Perez and Murrillo at the substation immediately after she had been released and failed to intervene. Harrison testified that a police officer may have been "in back or w
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