NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDON SMITH,

Plaintiff

- Appellant,

v. CITY OF CHANDLER; KEITH SMITH, Officer #616, Defendants

- Appellees. No. 17

- 16820
D.C. No. 2:12

- cv - 02391

- FJM

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding Argued and Submitted July 15, 2019 San Francisco, California Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK, ** District Judge. This appeal arises out of Plaintiff

- Appellant Brandon Smith’s state law negligence claim against the City of Chandler, Arizona (the “City”) . He alleges that injuries he sustained by his suicide attempt during an encounter with the City’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designatio n. 

# FILED

DEC 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

police officers resulted from Officer Keith Smith negligently disregarding his professional training on how to deal with emotionally disturbed, potentially suicidal persons. Appellant appeals the d istrict court’s decision granting judgment as a matter of law on Appellant’s negligence claim in favor of the City. 1 The district court granted the City’s post

- trial motion for judgment as a matter of law because it concluded that the Appellant’s suicide a ttempt constituted, under Arizona law, an intervening, superseding cause of Appellant’s injuries. We reverse and remand for further proceedings

. A district court’s grant of judgment as a matter of law is reviewed de novo

. See Krechman v. Cty. of Riverside , 723 F.3d 1104, 1109 (9th Cir. 2013). “In doing so, we ‘view the evidence in the light most favorable to the nonmoving party . . . and draw all r easonable inferences in that party’s favor.’” Id. (quoting EEOC v. Go Daddy Software, Inc. , 581 F.3d 951, 961 (9th Cir. 2009)). A district court may grant a motion for judgment as a matter of law only “if ‘a party has been fully heard on an issue and there is no legally sufficient basis for a reasonable jury to

1 Appellant originally proceeded to trial on a federal claim under 42 U.S.C. § 1983 against Officer Smith and a negligence claim under Arizona law against the City. At the close of Appellant’s case, Smith and the City moved for judgment as a matter of l aw on the claims. The district court denied the motion without prejudice. The jury found for Smith on the section 1983 claim but failed to reach a verdict on the negligence claim. The district court declared a mistrial on the negligence claim. The City the n renewed its motion for judgment as a matter of law on the negligence claim.3

find for that party on that issue.’” Jorgensen v. Cassiday , 320 F.3d 906, 917 (9th Cir. 2003) (quoting Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 149 (2000)). Here, the district court , misinterpreting three Arizona decisions, erroneously held that, as a matter of Arizona law, Appellant’s suicide attempt superseded the City’s alleged negligence as the cause of Appellant’s injuries because Officer Smith did not cause Appellant’s underlyi ng mental condition. The district court concluded, as a matter of Arizona law, that a suicide is a superseding cause “unless the defendant’s conduct caused the mental condition from which the attempted suicide arose . . . .” In other words, the district co urt concluded that Arizona law require d the Appellant to show that the City caused Appellant’s underlying mental illness in order to hold the City liable for his suicide attempt. There is no such requirement. Under Arizona law, causing a plaintiff’s underlying mental illness is merely one basis for holding a defendant liable for a plaintiff’s suicide. See Maricopa Cty. v. Cowart , 471 P.2d 265, 267

– 68 (Ariz. 1970); Pompeneo v. Verde Valley Guidance Clinic , 249 P.2d 1112, 1113

– 1 5 (Ariz. Ct. App. 2011) ; Tucson Rapid Transit Co. v. Tocci , 414 P.2d 179, 184

– 86 (Ariz. Ct. App. 1966) . Contrary to the district court’s interpretation of the se three cases, no Arizona case establishes that sui cide is a superseding cause unless the defendant caused the underlying mental illness.4

The district court failed to analyze Appellant’s claim under applicable Arizona tort law relating to applicable duty and foreseeability concepts. Under Arizona law, wh ether an event constitutes an intervening, superseding cause of a plaintiff’s injuries depends on whether the intervening event was a foreseeable risk of the negligence the defendant was under a duty to avoid. See Tocci , 414 P.2d at
183

– 84. Whether an even t constitutes a superseding cause is ordinarily a question of fact for the jury to decide. See Pompeneo , 249 P.2d at 415. Here, Appellant’s evidence presented a fact ual issue of whether Appellant’s suicide attempt was foreseeable. When Appellant’s stepmoth er called the City police, she informed the dispatcher that Appellant was suicidal and had previously been on a suicide watch. The call was dispatched to the officers as a suicidal subject call. At oral argument, the City acknowledged that Officer Smith ha d received specific training on how to deal with emotionally disturbed persons, he knew Appellant was such an emotionally disturbed person with the potential to commit suicide, and he was under a legal duty to treat Appellant accordingly. Under these facts , a jury could reasonably find that Officer Smith was under a legal duty to follow his training relating to dealing with an emotionally disturbed, suicidal person, and could foresee that violating the training could lead the Appellant to attempt suicide. Accordingly, we reverse the district court’s grant of judgment as a matter of law. Because we reverse the judgment as a matter of law, we also vacate the5

court’s award of attorneys’ fees and non

- taxable costs.
REVERSED and REMANDED .Sm ith v

. C i ty of C handle r, Case No. 17-16820 Raw linson, Cir c uit Judge , c onc ur r ing in par t and disse nting in par t: Although I a gre e with the m a jority tha t the a wa rd of a ttorne y s’ fe e s to the
de fe nda n ts should be

re ve rse d, I re spe c tfully

disa gre e tha

t the distric t c ourt e rre d in
gra n ting judgm e nt a s a

m a tte r of la

w in fa vor of the C ity

. In m

y vie w, the distric t

c ourt’ s ruling wa s c onsiste nt with Ariz ona pre c e de nt.
In Tuc son Rapid Transit C o. v . Toc c i , 414 P.2d 179, 183 (Ariz . C t. App. 1966), the Ariz ona

C o urt of Appe a ls note d the ge n e ra l rule tha t “ a pe rson will not
be re lie ve d of lia

bility by a n inte rve n ing forc e whic h c ould re a sona bly ha ve be e n fore se e n.” The c o urt spe c ific a lly a c knowle dge d tha

t if the “ inte rve ning forc e ta ke s the form of suic ide the pra c tic a lly una nim ous rule is tha

t suc h a c t is a

ne w a nd
inde pe nde nt a ge nc y

whic h doe s not c o m e within a nd c om ple te a line of c a usa tion
from the wrongful a c t to the de a th.” Id. In tha t c irc um sta

nc e , the c o urt e xpla ine d,
the d e fe nda

nt would not be

“ l ia ble for the suic ide .” Id. (quoting 11 A.L.R .2d 751, 757 (1950)).
The c ourt a lso re lie d

upon the R e sta

te m e nt (Se c o nd), Torts § 455 (1965), for
the p roposition tha

t unle s s the “ a c tor’ s ne glige nt c onduc t . . . brings a

bout the
de lirium or insa n i ty of a nothe r,” the ne glige nt a c tor is not “ lia ble for ha rm done by
the o the r to him se lf while de lirious or insa ne .” Id. a t

184. The distric t c ourt’ s



# FIL ED

DEC 11 2019
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS

1ruling wa s c onsiste nt with this a na ly sis.
In a sim ila r ve i n, the Ariz ona C ourt of Appe a l s rule d in Pompe ne o v
. Ve rde
Valle y Guidanc e C

linic , 249 P.3d 1112, 1114 (Ariz . C t. App. 2011) tha t its prior ruling in Toc c i pre c lude d lia bility on the pa rt of a m e n ta l he a lth c linic for a n

unsuc c e s sful suic ide a t te m pt by the pla i ntiff. The c ourt he ld tha t Toc c i wa s

“ dire c tly a pplic a ble to [Pla i ntiff’ s] c la i m
. ” Id. a t 1115. De spite the a lle ga t ions tha t his a tte m pte d suic i d e wa s c a

use d by the c linic ’ s ne glige nc e , the c o urt obse rve d tha t the p la intiff “ pre se nte d no fa c ts to c ha lle n g e the c onte ntion tha t his a t te m pte d
suic ide wa s volitiona l .” Id. B e c a use the a tte m

pte d suic ide wa s inte ntiona l, “ his

a c tions c o nstitute d a

supe rve n i ng c a

use a s a m a tte r of la

w .” Id.
A third Ariz ona c a s e supports the distric t c ourt’ s de c ision. In M aric opa C

ty

.

v . C ow art , 471 P.2d 265, 267 (Ariz . 1970) (in ba nc ), the Ariz ona

Supre m e C ourt

c ite d Toc c i a nd re ite ra te d:

[T] he a lm o st unive rsa l rule is tha t the suic ide by

the injure d pa rty is a supe rse d ing c a

use whic h is ne ithe r fore s e e a ble nor a norm a l inc ide nt of the risk c re a te d a nd the re fore re lie v e s the origina l a c tor from

lia bility for the de a t

h re sulting from

the suic ide

. Nothing a bout the fa c ts of this c a se ta ke s it outside the holdings of the se thre e Ariz ona

c a se s, na m e ly tha t suic i de or a tte m

pte d suic ide is not fore se e a ble a nd

c onstitute s a

n inte rve ning e ve nt pre c luding lia bility unde r a

ne g lige nc e the ory

of

2lia

bility . Tria l te stim ony

e sta blishe d tha

t the offic e rs we re not the c a use of
Pla i ntiff’ s suic i da l sta

te . Adm i tte dly , Offic e r Ha wkins y e lle d for Pla i ntiff to drop
the k nife , but Pla intiff ha d a lre a dy pla c e d the knife to his ne c k a t tha t point.
Pla i ntiff ha d a

long history

of m a king suic ida l thre a ts, of poly s ubsta nc e a buse , a nd
of se l f-m utila tion. Pla intiff’ s m othe r inform e d the offic e rs tha t Pla intiff wa s suic ida l on tha

t night a n d “ wa nte d to hurt him se lf.” Pla intiff him se l f te stifie d tha t he “ w a nte d to die ” a nd “ wa s gla d” whe n he sta bbe d him se lf in the ne c k. Fina lly , the j ury a bsolve d the C ity

a nd the offic e rs of a ll lia

bility for e xc e ssive forc e
. Unde r the se c irc u m sta

nc e s, the distric t c o urt c orre c tly a pplie d Ariz ona ne glige nc e la w in c o nc luding tha

t Pla i n tiff’ s inte ntiona l, a tte m pte d suic ide wa s a

n inte rve ning

c a use of his injurie s
. Se e id.
I would a ffirm the judgm e nt of the distric t c ourt.

3