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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Arturo Contreras, et al.,

Plaintiffs,

v. 

Chester David Brown, et al.,

Defendants.

No. CV-17-08217-PCT-JAT

ORDER 

Pending before the Court are Plaintiffs Arturo Contreras and Jose Torres’s

(“Plaintiffs”) Motion for Partial Summary Judgment (Doc. 69) and Defendants Chester 

Brown (“Defendant Brown”) and Legacy, Inc.’s (“Defendant Legacy;” collectively 

“Defendants”) Motion for Partial Summary Judgment (Doc. 121). The Court now rules on 

the motions. 

I. BACKGROUND

On October 16, 2018, Plaintiffs filed their pending Motion for Partial Summary 

Judgment (Doc. 69). Defendants filed a timely Response (Doc. 82) on November 15, 2018, 

and Plaintiffs then filed a timely Reply (Doc. 96) on November 30, 2018. 

On February 20, 2019, Defendants filed their pending Motion for Partial Summary 

Judgment (Doc. 121). Plaintiffs failed a timely Response (Doc. 127) on March 21, 2019, 

and Defendants then filed a timely Reply (Doc. 133) on April 5, 2019.

The operative Complaint (Doc. 1-1) alleges the following causes of action: (i) 

negligence, (ii) negligent entrustment, and (iii) negligent hiring, training, and supervision. 
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(Doc. 1-1 at 29–35). 

A. Facts

The following facts are either undisputed or presented in the light most favorable to 

Plaintiffs. On December 10, 2014, Defendant Brown was involved in a rear-end collision 

with Plaintiffs near Kingman, Arizona. (Doc. 69 at 2; Doc. 121-1 at 2). Defendant Brown 

was driving a loaded tractor-trailer directly behind Plaintiffs’ vehicle. (Doc. 69 at 2; Doc. 

121 at 2).1 Plaintiff Torres was driving a 1994 Chevrolet Astro, in which Plaintiff Contreras 

was a passenger. (Doc. 69 at 2; Doc. 121 at 2). As the parties traveled on Interstate 40, two 

vehicles in front of the parties stopped suddenly. (Doc. 69 at 2; Doc. 121 at 2). Plaintiffs 

significantly slowed or stopped without impacting the vehicles in front of them, but 

Defendant Brown was unable to stop before colliding with the rear of Plaintiffs’ vehicle. 

(Doc. 69 at 2; Doc. 121 at 2). Both parties pulled to the side of the road after the collision 

and later drove away from the scene without further incident. (Doc. 121-3 at 12; Doc. 121-

4 at 23). The Court will discuss other relevant facts as necessary in the body of this Order.

II. LEGAL STANDARD

Summary judgment is appropriate when “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that 

assertion by . . . citing to particular parts of materials in the record, including depositions, 

documents, electronically stored information, affidavits, or declarations, stipulations . . . 

admissions, interrogatory answers, or other materials,” or by “showing that materials cited 

do not establish the absence or presence of a genuine dispute, or that an adverse party 

cannot produce admissible evidence to support the fact.” Id. 56(c)(1)(A), (B). Thus, 

summary judgment is mandated “against a party who fails to make a showing sufficient to 

 

1 At times, Plaintiffs refer to Defendant Brown’s tractor-trailer as fully loaded at

40,000 pounds; at other times, Plaintiffs refer to it at 66,000 pounds. (Compare Doc. 69 at 

2, 6 (40,000 pounds) with Doc. 96 at 2, 3 (66,000 pounds); but see Doc. 121-4 at 15 

(Defendant Brown testified in his deposition that his tractor-trailer was carrying “26,000 

pounds, half a load,” at the time of the collision)). Regardless of Plaintiffs’ confusion, the 

Court finds this distinction immaterial for the purposes of this Order.
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establish the existence of an element essential to that party’s case, and on which that party 

will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

Initially, the movant bears the burden of demonstrating to the Court the basis for the 

motion and the elements of the cause of action upon which the non-movant will be unable 

to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmovant to establish the existence of material fact. Id. A material fact is any factual issue 

that may affect the outcome of the case under the governing substantive law. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply 

show that there is some metaphysical doubt as to the material facts” by “com[ing] forward 

with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting Fed. R. Civ. P. 56(e)). A 

dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return 

a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant’s 

bare assertions, standing alone, are insufficient to create a material issue of fact and defeat 

a motion for summary judgment. Id. at 247–48. However, in the summary judgment 

context, the Court construes all disputed facts in the light most favorable to the non-moving 

party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

At the summary judgment stage, the Court’s role is to determine whether there is a 

genuine issue available for trial. There is no issue for trial unless there is sufficient evidence 

in favor of the non-moving party for a jury to return a verdict for the non-moving party. 

Liberty Lobby, Inc., 477 U.S. at 249-50. “If the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted.” Id. (citations omitted).

III. DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

The Court will first address Defendants’ Motion for Partial Summary Judgment 

(Doc. 121). Defendants move for partial summary judgment on Plaintiffs’ direct negligence 

claims against Defendant Legacy. 

A. Vicarious Liability

Defendant Legacy admits that, under the doctrine of respondeat superior, it is 
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vicariously liable for Defendant Brown’s actions because Defendant Brown was “acting 

within the course and scope of his employment at the time of the collision.” (Doc. 121 at 

1). Defendants’ argument follows that, because Defendant Legacy concedes vicarious 

liability, any direct liability claims against Defendant Legacy are “subsumed” and rendered 

superfluous by the vicarious liability claims. (Id. at 3–4). Recently, the District of Arizona 

addressed this argument—raised by the same Counsel, in a strikingly similar context—and 

this Court need not reinvent that analysis:

[Defendants] cite[] Lewis v. Southern Pacific Company, in 

which the Arizona Supreme Court stated that “failure of an 

employer to hire only competent and experienced employees 

does not itself constitute an independent ground of actionable 

negligence.” 425 P.2d 840, 841 (Ariz. 1967). However, since 

Lewis, Arizona has adopted new theories of joint and several 

liability and comparative negligence. See A.R.S. § 12-2501. 

Additionally, multiple subsequent cases decided by the 

Arizona Court of Appeals have held that the holding in 

Lewis—that negligent hiring and supervision is not an 

independent ground of actionable negligence against the 

employer—is limited. See Quinonez in re Quinonez v. 

Andersen, 696 P.2d 1342 (Ariz. Ct. App. 1984); Pruitt v. 

Pavelin, 685 P.2d 1347 (Ariz. Ct. App. 1984); Kassman v. 

Busfield Enterprises, Inc., 639 P.2d 353 (Ariz. Ct. App. 1981) 

(recognizing negligent hiring, training, and supervision as a 

separate cause of action against an employer). 

Brill v. Lawrence Transp. Co., No. CV-17-01766-PHX-JJT, 2018 WL 6696815, at *2 (D. 

Ariz. Dec. 20, 2018); see also Salazar v. Flores, No. CV-16-08201-PCT-SPL, 2019 WL 

1254661, at *2 (D. Ariz. Mar. 18, 2019) (holding—consistent with Brill—that “[b]ecause 

the Court finds that Quinonez applies, Plaintiff is permitted to bring both vicarious liability 

and direct negligence claims under Arizona law”).

“As a result, the Court finds that Lewis is not controlling in this matter and Arizona 

law allows Plaintiff[s] to allege direct liability claims in addition to claims of vicarious 

liability.” See Brill, 2018 WL 6696815, at *2. Accordingly, Defendants are not entitled to 

partial summary judgment on this theory.

B. Sufficiency of the Evidence

Alternatively, Defendants argue that Plaintiffs’ direct negligence claims against 

Defendant Legacy lack sufficient evidence to survive summary judgment. (Doc. 121 at 7). 
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1. Negligent Entrustment

To establish a negligent entrustment claim under Arizona law, Plaintiffs must prove

the following elements:

(1) that Defendant[s] owned or controlled a vehicle; (2) 

Defendant[s] gave the driver permission to operate a vehicle; 

(3) the driver, by virtue of his physical or mental condition, 

was incompetent to drive safely; (4) the Defendant[s] knew or 

should have known that the driver, by virtue of his physical or 

mental condition, was incompetent to drive safely; (5) 

causation; and (6) damages.

Acuna v. Kroack, 128 P.3d 221, 227 (Ariz. Ct. App. 2006) (internal quotation marks and 

citation omitted).

In this matter, the undisputed fact that “[Defendant] Brown was operating his 

tractor-trailer under the motor carrier authority of [Defendant] Legacy” at the time of the 

accident satisfies the first two elements of negligent entrustment. (See Doc. 121 at 11).

Defendants argue that Plaintiffs cannot satisfy the next three elements of negligent 

entrustment. (Id. at 10–11). Specifically, Defendants contend that Plaintiffs have not set 

forth evidence that: (1) “[Defendant] Brown was incompetent either physically or mentally 

to operate a tractor-trailer;” (2) “[Defendant] Legacy had reason to believe that [Defendant] 

Brown was incompetent;” or (3) that there is a “causal connection” between Defendant 

Legacy’s alleged negligence and Plaintiffs’ injuries. (Id. at 11; Doc. 133 at 5). 

Plaintiffs counter that, “[a]t the time of the crash, [Defendant] Brown was diabetic” 

and “also suffered from high blood sugar;” taking daily medication to control both 

conditions. (Doc. 127 at 4). Even so, Plaintiffs do not cite any regulation or other authority 

that demonstrates these conditions render Defendant Brown incompetent to operate a 

tractor-trailer or otherwise disqualify Defendant Brown from holding a commercial 

driver’s license. (See Doc. 133 at 2). Conversely, Federal Motor Carrier Safety Regulations 

(FMCSRs) provide that “an individual with diabetes mellitus treated with insulin for 

control must be medically examined and certified by a medical examiner as physically 

qualified;” and “a person is physically qualified to drive a commercial motor vehicle if that 

person . . . [h]as no current clinical diagnosis of high blood pressure likely to interfere with 
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ability to operate a commercial motor vehicle safely.” 49 C.F.R. § 391.46 (regarding 

diabetes); 49 C.F.R. § 391.41 (regarding high blood pressure). 

Here, Defendant Brown held a valid Department of Transportation medical 

certificate at the time of the collision. (See Doc. 133-1). Defendant Brown’s “Medical 

Examination Report” notes that his diabetes was controlled by pills—not insulin—and his 

blood pressure also met the required standards to maintain his certification. (Id. at 2–3). 

Thus, the Court finds that Defendant Brown was physically qualified and properly licensed 

to operate a commercial motor vehicle at the time of the collision. Moreover, Plaintiffs do 

not argue that Defendant Brown suffered from any mental condition that would render him 

incompetent to drive safely. (See generally Doc. 127). Accordingly, Plaintiffs cannot 

satisfy the third element of a negligent entrustment claim (or the subsequent elements, 

which are based on Defendant Brown’s competency).2 Thus, Defendants are entitled to 

summary judgment on Plaintiffs’ claim for negligent entrustment. 

2. Negligent Hiring, Training, and Supervision

Next, Defendants move for summary judgment on Plaintiffs’ remaining direct 

negligence claim for negligent hiring, training, and supervision. (See Doc. 121 at 7).

a. Legal Standard

“An employer is liable for the tortious conduct of its employee if the employer was 

negligent or reckless in hiring, supervising, or otherwise training the employee.” 

Hernandez, 2019 WL 367994, at *6 (citation omitted). For negligent hiring, supervision, 

 

2 Although not raised by Plaintiffs, “some Arizona courts have suggested the 

incompetence may arise from other factors, such as youth, inexperience, driving habits, 

and poor character.” Hernandez v. Singh, No. CV-17-08091-PCT-DWL, 2019 WL 367994, 

at *3 (D. Ariz. Jan. 30, 2019). Because Plaintiffs did not raise any arguments under the 

more expansive definition of incompetence, the Court finds that any such arguments are 

hereby waived. See, e.g., U.S. v. Romm, 455 F.3d 990, 997 (9th Cir. 2006) (“arguments not 

raised by a party in its opening brief are deemed waived”). 

Nevertheless, to the extent any of Plaintiffs’ arguments on their remaining direct 

negligence claim against Defendant Legacy bear on the issue of Defendant Brown’s 

competency, the Court finds—for the reasons outlined below—that “Plaintiffs have not 

presented evidence sufficient to establish a genuine issue of fact as to whether [Defendant 

Brown] was incompetent or otherwise unfit to drive when [Defendant Legacy] entrusted 

the vehicle to him.” Hernandez, 2019 WL 367994, at *4 (holding the same under similar 

factual circumstances); see infra Part III(B)(2)(b). 
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and training claims, “Arizona follows the Restatement (Second) of Agency § 213.” Id. 

(internal quotation marks and citation omitted). Section 213 provides: 

A person conducting an activity through servants or other 

agents is subject to liability for harm resulting from his conduct 

if he is negligent or reckless:

(a) in giving improper or ambiguous orders of [sic] in failing 

to make proper regulations; or

(b) in the employment of improper persons or instrumentalities 

in work involving risk of harm to others[;]

(c) in the supervision of the activity; or

(d) in permitting, or failing to prevent, negligent or other 

tortious conduct by persons, whether or not his servants or

agents, upon premises or with instrumentalities under his 

control.

Restatement (Second) of Agency § 213 (1958).

“For an employer to be held liable for the negligent hiring, retention, or supervision 

of an employee, a court must first find that the employee committed a tort.” Kuehn v. 

Stanley, 91 P.3d 346, 352 (Ariz. Ct. App. 2004). Once the underlying tort of an employee 

is established, the employer may be liable “not because of the relation of the parties, but 

because the employer antecedently had reason to believe that an undue risk of harm would 

exist because of the employment.” Quinonez, 696 P.2d at 1346 (citation omitted).

“Thus, for a negligent hiring claim to lie, the employer must have known or had 

some reason to know of the employee’s incompetence before hiring the employee.” 

Hernandez, 2019 WL 367994, at *6 (collecting cases). “Similarly, to prove negligent 

supervision, the plaintiff must show the employer knew or should have known the 

employee was incompetent and that the employer subsequently failed to supervise the 

employee, ultimately causing the harm at issue.” Id. at *7 (collecting cases). “[T]o prevail 

on a negligent training claim, a plaintiff must show a defendant’s training or lack thereof 

was negligent and that such negligent training was the proximate cause of a plaintiff’s 

injuries.” Id. (citation omitted). Importantly, “[a] showing of an employee’s incompetence 

is not necessarily enough; the plaintiff must also present evidence showing what training 
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should have been provided, and that its omission proximately caused the plaintiff’s 

injuries.” Id. (citation omitted).

b. Analysis

To support their negligent hiring, training, and supervision claim, Plaintiffs argue 

that Defendant Brown was not formally or properly trained prior to his employment by 

Defendant Legacy, and Defendant Legacy failed to provide “on-the-job training” or 

adequately assess Defendant Brown’s capabilities upon hiring Defendant Brown. (Doc. 

127 at 5–6). Rather, Plaintiffs state that “[Defendant] Legacy ‘figured he knew what do 

[sic] while operating a truck because he had been driving for over 40 years.’” (Id. at 6 

(citing “Exhibit 1 at 37–46”)).3

As a preliminary matter, Defendants point out that “Plaintiffs never disclose 

opinions from a trucking expert on the standard of care” that Defendant Legacy must 

follow and allegedly breached through its employment practices. (Doc. 121 at 7).4 Even 

assuming the truth of Plaintiffs’ assertions at the summary judgment stage, Plaintiffs do 

not cite any federal regulation or similar rule that could demonstrate the shortcomings of 

Defendant Legacy’s hiring and training practices. (Compare Doc. 133 at 3 with Doc. 127 

at 5–6). Conversely, Defendants provide that FMCSRs set out the following “[g]eneral 

qualifications of drivers.” 49 C.F.R. § 391.11. “A person is qualified to drive a motor 

vehicle” under the applicable regulatory framework if he or she:

(1) Is at least 21 years old;

 

3 Although Plaintiffs attribute the quoted statement to Defendant Legacy, Plaintiffs 

cite a broad range of pages of deposition transcripts, which do not appear to contain the 

purported quote. (See Doc. 127 at 6); see also Conti v. U.S. Dept. of Homeland Sec., 12 

Civ. 5827(AT), 2014 WL 1274517, at *21 (S.D.N.Y. Mar. 24, 2014) (“Courts are not 

obligated to wade through pages of deposition testimony, but must rely on the parties to 

point to specific pages in the record” (citation omitted)). The closest statement that this 

Court observes is from Defendant Brown in response to a question regarding Defendant 

Legacy’s lack of emergency training: “they figure if you’ve driven 40 years, that you 

already know what to do in an emergency.” (Doc. 127 at 21). 

4 See also Rae v. United States, No. CV-15-01551-PHX-JJT, 2016 WL 4943378, at 

*2 (D. Ariz. Sept. 16, 2016) (reasoning that a plaintiff’s failure “to disclose an expert, 

alone, warrants summary judgment” in the defendant’s favor because “without a standard 

of care expert, [the plaintiff] is unable to prove essential elements of her claims” on which 

the plaintiff will bear the burden of proof at trial).
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(2) Can read and speak the English language sufficiently to 

converse with the general public, to understand highway traffic 

signs and signals in the English language, to respond to official 

inquiries, and to make entries on reports and records;

(3) Can, by reason of experience, training, or both, safely 

operate the type of commercial motor vehicle he/she drives;

(4) Is physically qualified to drive a commercial motor vehicle 

in accordance with subpart E—Physical Qualifications and 

Examinations of this part;

(5) Has a currently valid commercial motor vehicle operator’s 

license issued only by one State or jurisdiction;

(6) Has prepared and furnished the motor carrier that employs 

him/her with the list of violations or the certificate as required 

by § 391.27;

(7) Is not disqualified to drive a commercial motor vehicle 

under the rules in § 391.15; and

(8) Has successfully completed a driver’s road test and has 

been issued a certificate of driver’s road test in accordance with 

§ 391.31, or has presented an operator’s license or a certificate 

of road test which the motor carrier that employs him/her has 

accepted as equivalent to a road test in accordance with § 

391.33.

Id. (emphasis added).

Here, the record confirms that Defendant Brown held a valid commercial driver’s 

license from the State of Missouri. (Doc. 133-3 at 6, 11). Plaintiffs do not dispute that 

Defendant Brown—at all relevant times—satisfied the (1) age, (2) English language, (5) 

licensure, and (6) certificate requirements. Plaintiffs further do not allege, and this Court 

does not find, that Defendant Brown was otherwise disqualified to drive a commercial 

vehicle under item (7). See 49 C.F.R. § 391.15. As reasoned above, Defendant Brown also 

held a valid Department of Transportation medical certificate to support this Court’s 

finding that he was physically qualified under item (4). See supra Part III(B)(1); (see also 

Doc. 133-1). Thus, the remaining items that could potentially be subject to dispute pertain 

to: (3) safe operation and (8) road testing. 

Regarding item (3), Plaintiffs argue that Defendant Brown “never underwent 

professional driver training education prior to obtaining his commercial driver’s license,” 
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nor did he “receive any formal on-the-job training on how to drive a tractor-trailer from 

[Defendant] Legacy.” (Doc. 127 at 5–6). Formal training, however, is not required under 

the applicable regulation if Defendant Brown instead demonstrated that he could safely 

operate a tractor-trailer “by reason of experience.” See 49 C.F.R. § 391.11(b)(3). 

Defendants provide, and Plaintiffs do not dispute, that Defendant Brown “has never been 

involved in an accident while driving a commercial motor vehicle prior to this accident” in 

over 40 years of holding a commercial driver’s license. (Doc. 121 at 8). Moreover, 

Defendant Brown logged over 3 million miles on his current truck alone. (Doc. 121-6 at 

22). Plaintiffs fail to rebut Defendants’ argument that Defendant Brown’s history is 

sufficient to meet the requirements of item (3) “by reason of experience,” nor do Plaintiffs 

point to evidence that demonstrates Defendant Brown was otherwise incompetent to safely 

operate his tractor-trailer. (See generally Doc. 127). Accordingly, this Court finds that 

Defendants establish that Defendant Brown satisfied item (3) at the time of his employment 

by reason of experience. 

Regarding item (8), Plaintiffs argue that Defendant Legacy did not administer a 

“driving test” to Defendant Brown prior to on-boarding him. (Doc. 127 at 6). As 

Defendants point out, however, Defendant Legacy is not required to do so under FMCSRs. 

(See Doc. 133 at 4). The applicable regulation provides that a driver may alternatively

satisfy item (8) by presenting an “operator’s license,” as Defendant Brown did here. See 

49 C.F.R. § 391.11(b)(3); (see also Doc. 133-3 at 6, 11). Accordingly, the Court finds that 

Defendants also establish that Defendant Brown satisfied item (8) at the time of his 

employment. Thus, Defendant Brown possessed all the requisite “[g]eneral qualifications 

of drivers” before Defendant Legacy hired him. See 49 C.F.R. § 391.11(b).5 Because the 

 

5 See also Salazar, 2019 WL 1254661, at *3 (finding that a defendant-transportation 

company was entitled to summary judgment on a similar claim for negligent hiring, 

supervision, and training because “[n]othing in the evidence suggests that any preemployment checks or pre-employment testing would have provided [the defendanttransportation company] with any notice of [the driver’s] alleged incompetence;” there, the 

court found that the defendant-trucking company’s failure to conduct a road test or 

disseminate a driver safety handbook to its driver, among other factors, was insufficient to 

preclude summary judgment on a negligent hiring claim).
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record shows Defendant Legacy lacked actual or constructive knowledge of Defendant 

Brown’s alleged incompetence before hiring him, the Court finds that Defendants are 

entitled to summary judgment as to negligent hiring. 

For the same reasons, Plaintiffs fail to demonstrate that Defendant Legacy “knew 

or should have known the employee was incompetent” while under the supervision of 

Defendant Legacy. See Hernandez, 2019 WL 367994, at *7. Plaintiffs do not point to, nor 

does the Court find, any evidence to show how Defendant Legacy’s reasonable competency

assumptions could have changed after Defendant Brown began working for Defendant 

Legacy. (Compare Doc. 127 with Doc. 121-6 at 22). Accordingly, Defendants are entitled 

to summary judgment as to negligent supervision. 

Additionally, without identifying any regulation or industry standard, Plaintiffs are 

unable to show how Defendant Legacy’s alleged lack of training was negligent. (See 

generally Doc. 127).6 Moreover, even if Plaintiffs could demonstrate that additional 

training was required under some standard of care, Plaintiffs fail to “present evidence 

showing what training should have been provided, and that its omission proximately caused 

the plaintiff’s injuries.” See Hernandez, 2019 WL 367994, at *7.

7 Thus, Plaintiffs’ claim 

is deficient as to a required element of negligent training. See Celotex Corp., 477 U.S. at 

322. Accordingly, the Court finds that Defendants are entitled to summary judgment on 

Plaintiffs’ claim for negligent hiring, training, and supervision.8

IV. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs move for partial summary judgment on the issues of liability and 

respondeat superior.

 

6 At one point, Plaintiffs argue that Defendant Legacy did not provide “any training 

whatsoever,” but Plaintiffs concede elsewhere that Defendant Legacy does provide training 

to drivers “as needed . . . via a mass company-wide e-mail.” (Doc. 127 at 6 (citing id. at 

42)).

7 Without a trucking expert, Plaintiffs cannot present evidence regarding industry 

standards at trial, and presented no argument as to what training should have been provided 

herein. (See generally Doc. 127).

8 Because the Court finds that Defendant Legacy was not negligent in its hiring, 

training, or supervision of Defendant Brown, it need not address the additional element of 

causation. 
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A. Liability

In Arizona, to establish a claim for negligence, “a plaintiff must prove four 

elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a 

breach of the duty of that standard; (3) a causal connection between the defendant’s conduct 

and the resulting injury; and (4) actual damages.” Alegria v. United States, No. CV-11-

809-TUC-HCE, 2012 WL 12842258, at *4 (D. Ariz. Nov. 20, 2012) (citing Gipson v. 

Kasey, 150 P.3d 228, 230 (Ariz. 2007)). 

Plaintiffs argue that they are entitled to summary judgment on liability, but only 

specifically explains that the record “supports entry of summary judgment on the duty and 

breach elements of Plaintiffs’ negligence claims.” (Doc. 69 at 7). Plaintiffs assert that they 

establish liability under either the doctrine of res ipsa loquitur or negligence per se. (Id. at 

6–7).

1. Res Ipsa Loquitur

Under Arizona law, res ipsa loquitur requires the following conditions be met:

(1) The accident must be of a kind which ordinarily does not 

occur in the absence of some one’s negligence;

(2) It must be caused by an agency or instrumentality within 

the exclusive control of defendant;

(3) It must not have been due to any voluntary action on the 

part of the plaintiff;

(4) Plaintiff must not be in a position to show the particular 

circumstances which caused the offending agency or 

instrumentality to operate to his injury.

O’Donnell v. Maves, 436 P.2d 577, 579 (Ariz. 1968). A plaintiff must meet “all the 

conditions of res ipsa loquitur” for the doctrine to apply. Jackson v. H. H. Robertson Co., 

Inc., 574 P.2d 822, 826 (Ariz. 1978). While “a plaintiff who is the victim of ‘the usual rearend collision’ may, under appropriate circumstances, have the benefit of the doctrine,” res 

ipsa loquitur does not apply to rear-end collision cases where the evidence reveals the 

cause of the accident. Conner v. Brkich, 481 P.2d 894, 896 (Ariz. Ct. App. 1971) (quoting 

O’Donnell, 436 P.2d at 579 (holding that res ipsa loquitur did not apply to a rear-end 
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collision where the evidence established that the collision occurred from brake failure)). 

Defendants contend that Plaintiffs cannot meet the second, third, or fourth condition 

for res ipsa loquitur. Relevant to the fourth condition, Plaintiffs provide a detailed 

recounting of the circumstances of the collision: “[Defendant] Brown was immediately 

behind the Torres vehicle in a tractor[-]trailer” when “the vehicles in front of [both parties’] 

vehicles stopped suddenly.” (Doc. 69 at 2). Plaintiffs continue that Plaintiffs “safely 

stopped without impacting the vehicle in front of [them],” but “[Defendant] Brown failed 

to yield to traffic in front of his vehicle and failed to maintain a safe distance, causing him 

to crash into the rear of [Plaintiffs’] vehicle.” (Id.). The Court finds that Plaintiffs’ ability 

to show “the particular circumstances” which allegedly caused the injury defeats the 

applicability of res ipsa loquitur. See O’Donnell, 436 P.2d at 581 (agreeing that when a 

plaintiff was aware that a collision “was caused by excessive speed, the doctrine was 

inapplicable”).9 Accordingly, Plaintiffs are not entitled to partial summary judgment on the 

issue of liability under the doctrine of res ipsa loquitur.

2. Negligence Per Se

Next, Plaintiffs argue that Defendant Brown “is liable for this crash under the 

doctrine of negligence per se.” (Doc. 69 at 7). In Arizona, a “person who violates a statute 

enacted for the protection and safety of the public is guilty of negligence per se.” Jensen v. 

EXC, Inc., No. CV-15-08019-PHX-SPL, 2019 WL 588034, at *3 (D. Ariz. Feb. 13, 2019) 

(citation omitted). “Arizona’s traffic code is a safety regulation that can be the basis for 

negligence per se.” Id. (citation omitted). “However, a finding of negligence per se does 

not relieve the plaintiff from its burden of proving causation and damages.” Id. (citing City 

of Phoenix v. Mullen, 174 P.2d 422, 424 (Ariz. 1946) (stating that “[w]here the driver fails 

to comply with the positive directions of the statute, the question of whether such statutory 

negligence in any way contributed to the accident and injury of the plaintiff was one for 

 

9 Because the test is conjunctive, the Court need only find that Plaintiffs fail to 

satisfy one condition for res ipsa loquitur to be inapplicable. See Conner, 481 P.2d at 826.

As such, the Court need not analyze Defendants’ arguments—grounded in comparative 

negligence—regarding the other conditions of res ipsa loquitur. (See Doc. 82 at 6).
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the jury” (internal quotation marks and citation omitted))). Moreover, “Arizona is a 

comparative negligence state in which the relative degrees of fault of the claimant, all 

defendants, and nonparties are to be determined and apportioned by the finder of fact.” Id. 

(citing Ariz. Rev. Stat. §§ 12-2505, 12-2506). 

Plaintiffs argue that Defendant Brown violated two statutes through his acts 

culminating in the rear-end collision with Plaintiffs’ vehicle: Arizona Revised Statutes §§ 

28-701(A) and 28-730(A). (See Doc. 69 at 7). Arizona Revised Statute § 28-701(A) 

provides, in pertinent part, that “[a] person shall control the speed of a vehicle as necessary 

to avoid colliding with any object, person, vehicle or other conveyance on, entering or 

adjacent to the highway in compliance with legal requirements and the duty of all persons 

to exercise reasonable care for the protection of others.” Ariz. Rev. Stat. § 28-701(A). 

Arizona Revised Statute § 28-730(A) similarly provides that “[t]he driver of a motor 

vehicle shall not follow another vehicle more closely than is reasonable and prudent and 

shall have due regard for the speed of the vehicles on, the traffic on and the condition of 

the highway.” Ariz. Rev. Stat. § 28-730(A).10

Here, it is undisputed that Defendant Brown collided with the rear of Plaintiffs’ 

vehicle. (Doc. 82 at 2–3). Defendant Brown stated in his deposition that the collision 

occurred because he “didn’t have enough response time” after the vehicles in front of him 

stopped suddenly. (Doc. 69 at 33). It stands to reason, therefore, that Defendant Brown 

breached his duty to Plaintiffs by following Plaintiffs’ vehicle more closely than necessary 

 

10 Defendants correctly point out that “[n]egligence per se applies upon violation of 

a specific requirement of law whereby conduct can be measured versus an otherwise 

general principle.” Lee v. State Farm Mut. Auto. Ins. Co., No. CV 03-624-TUC-HCE, 2006 

WL 2917348, at *2 (D. Ariz. Oct. 10, 2006) (citing Hutto v. Francisco, 107 P.3d 934, 937 

(Ariz. Ct. App. 2005) (explaining that a statute must proscribe certain or specific acts to 

support a finding of negligence per se in holding that a statute requiring that “vehicles must 

be safely maintained” is an insufficiently specific standard by which conduct must be 

measured)). The District of Arizona previously acknowledged, however, that Arizona 

courts find Arizona Revised Statute § 28-730(A) sufficiently specific, such that a violation 

of that statute constitutes negligence per se. Lee, 2006 WL 2917348, at *2 (citing Newman 

v. Piazza, 433 P.2d 47, 51 (Ariz. Ct. App. 1967) (acknowledging that a “jury was instructed 

that it would be negligence per se to violate A.R.S. § 28–730(A)”)). Accordingly, this Court 

rejects Defendants’ argument that Plaintiffs failed to raise a statute for which a violation 

can constitute negligence per se.
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to maintain sufficient “response time” to avoid the rear-end collision. See id.; Ariz. Rev. 

Stat. §§ 28-701(A), 28-730(A). Accordingly, the Court finds that Defendant Brown’s 

statutory violations of Arizona Revised Statutes §§ 28-701(A) and 28-730(A) amount to 

negligence per se; thus satisfying the elements of duty and breach on Plaintiffs’ negligence 

claim.

3. Causation

Even though negligence per se applies, the doctrine fails to independently establish 

the element of causation, which is required to impose liability on a party for negligence. 

See, e.g., Jensen, 2019 WL 588034, at *3 (finding that a defendant’s statutory violation 

was negligence per se, but denying summary judgment as to liability because the plaintiff 

did not carry her additional “burden of proving causation”). “The proximate cause of an 

injury is that which, in a natural and continuous sequence, unbroken by any efficient 

intervening cause, produces an injury, and without which the injury would not have 

occurred.” Hernandez, 2019 WL 367994, at *7 (citation omitted). Generally, “it is for the 

jury to determine” the extent to which a defendant’s breach “contributed to the accident 

and injury of [the plaintiffs].” Jensen, 2019 WL 588034, at *4 (quoting Mullen, 174 P.2d 

at 424).

Here, Defendants argue that causation remains a disputed issue on a theory of 

comparative negligence. (Doc. 82 at 3).11 Specifically, Defendants point out the undisputed 

fact that that two vehicles ahead of Plaintiffs’ vehicle “were driving in such a manner that 

caused Plaintiffs’ vehicle to slow significantly, or stop, suddenly.” (Id.; see also Doc. 96 

at 4 (Plaintiffs agree that “the two vehicles in front of Plaintiffs’ vehicle simply stopped 

for an unknown reason to the parties”)). Defendants also dispute “that Plaintiffs’ vehicle 

stopped safely on the highway.” (Doc. 82 at 3 (emphasis in original) (citing Doc. 82-5 at 

 

11 Under Arizona’s comparative negligence statute, “[i]n assessing percentages of 

fault the trier of fact shall consider the fault of all persons who contributed to the alleged 

injury, death or damage to property, regardless of whether the person was, or could have 

been, named as a party to the suit.” Ariz. Rev. Stat. § 12-2506(B). “The relative degree of 

fault of the claimant, and the relative degrees of fault of all defendants and nonparties, shall 

be determined and apportioned as a whole at one time by the trier of fact.” Ariz. Rev. Stat. 

§ 12-2506(C) (emphasis added).
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18 (Defendant Brown stated in his deposition that “[Plaintiffs’ vehicle] in front of me just 

slammed on the brakes and just stopped, and the vehicles in front of them stopped like they 

[were] playing or something”))). Defendants’ argument follows that the fact that Plaintiffs’ 

vehicle “came to a complete stop or slowed significantly on this stretch of highway leaves 

room for a comparative negligence argument [regarding] Plaintiff Torres’ actions.” (Id.). 

Defendants also named the two vehicles in front of Plaintiffs’ vehicle as “non-parties at 

fault.” (Id. at 4 (citing Doc. 82-6)). 

Although Plaintiffs argue that Defendant Brown “fails to identify any breach of duty 

by the vehicles in front of Plaintiffs” and “Defendants offer no evidence . . . to show the 

vehicles in front of Plaintiffs negligently stopped their vehicles,” Plaintiffs—as the moving 

party—carry the burden of demonstrating that there is no genuine dispute as to causation 

in order to prevail on that issue at summary judgment. (Doc. 96 at 4); see Liberty Lobby, 

Inc., 477 U.S. at 248. In construing all disputed facts in the light most favorable to the nonmoving party, the Court finds that a reasonable factfinder could apportion some percentage 

of fault to someone other than Defendants. See Jensen, 2019 WL 588034, at *2 (accepting 

a defendant’s argument that “because Arizona is a pure comparative fault jurisdiction, even 

if [the defendants] were to be found negligent, the trier of fact would still need to establish 

what percentage of fault to attribute to him and decedent”); see also Silvestri v. Hurlburt, 

547 P.2d 514, 517 (Ariz. Ct. App. 1976) (“There is neither reason nor logic in preventing 

the court from telling the jury that it is negligence per se to violate the safety law herein 

involved and leave it to the jury to decide whether such violation amounted to contributory 

negligence.” (citation omitted)).12 Indeed, Defendants’ expert, “accident 

reconstructionist/biomechanical engineer,” Joseph Manning, opines to that end. (See Doc. 

 

12 Other courts similarly support the premise that a disputed issue as to comparative 

fault should preclude summary judgment on liability even if the defendants will be 

apportioned some percentage of fault. See, e.g., Ervin v. Shelter Gen. Ins. Co., Civil Action 

No. 14-0047-SDD, 2015 WL 1757869, at *2 (M.D. La. Apr. 17, 2015) (denying summary 

judgment as to liability when a rear-end collision was caused by a sudden stop on an 

interstate because “[n]otwithstanding the presumption of negligence, a favored motorist 

can still be assessed with comparative fault if his substandard conduct contributed to the 

cause of the accident”).
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82 at 4).13 Accordingly, the Court finds that Plaintiffs are not entitled to partial summary 

judgment as to liability due to the disputed issue of causation.

B. Vicarious Liability

Plaintiffs also argue that Defendant Legacy is vicariously liable “for any resulting 

injury caused by the negligence of [Defendant] Brown” under the doctrine of respondeat 

superior. (See Doc. 69 at 8). Likewise, “Defendants concede that if Defendant Brown is 

found to be at fault, then Defendant Legacy [] would be vicariously liable” under the 

doctrine of respondeat superior. (Doc. 82 at 9). Accordingly, the Court finds that, should 

Defendant Brown be found liable for negligence in this case, it is undisputed that vicarious 

liability applies to Defendant Legacy. However, because the Court finds that Plaintiffs are 

not entitled to summary judgment on the issue of liability, Defendant Legacy is not yet 

subject to liability as a matter of law. See supra Part IV(A). 

V. CONCLUSION

Based on the foregoing, 

IT IS ORDERED that Defendants’ Motion for Partial Summary Judgment (Doc. 

121) is GRANTED as to the direct negligence claims against Defendant Legacy.

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13 This Court previously entered an Order (Doc. 97) partially denying Plaintiffs’ 

Motion to Strike Defendants’ Expert Joseph Manning (Doc. 70) as it pertained to 

Manning’s biomechanical opinions regarding the collision contained in his expert report. 

(See generally Doc. 97). 
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IT IS FURTHER ORDERED that Plaintiffs’ Motion for Partial Summary 

Judgment (Doc. 69) is GRANTED IN PART and DENIED IN PART. The motion is 

granted as to the applicability of negligence per se, thus establishing the elements of duty 

and breach on Plaintiffs’ first negligence claim, and as to the applicability of vicarious 

liability. The motion is denied as to the applicability of res ipsa loquitur, and Defendants’ 

liability for negligence because there remains a genuine dispute as to causation.14

Dated this 3rd day of May, 2019.

 

14 The Court notes that Plaintiffs’ Motion to Strike Defendants’ Expert Mary Rossi 

(Doc. 122) remains pending and will be resolved in due course.