ARIZONA SUPREME COURT - Granicus

ARIZONA SUPREME COURT

ORAL ARGUMENT CASE SUMMARY

ERA C. NUNEZ v. PROFESSIONAL TRANSIT
MANAGEMENT OF TUCSON, INC.
CV-11-0186-PR

PARTIES: Professional Transit, doing business as SunTran (“SunTran”).
Petitioner:

Respondent: Era C. Nunez, as personal representative of the Estate of Linda Joyce Brown.

FACTS:

This case involves the applicable standard of care owed by common carriers to

passengers. Brown was a wheelchair-bound passenger on a bus operated by SunTran. When
Brown boarded the bus, the driver followed SunTran’s standard policy and secured the
wheelchair to the bus to prevent the chair from moving. SunTran’s policy was for the driver to

ask wheelchair passengers if they wanted to wear a seatbelt to secure them in the wheelchair.

The evidence in this case was conflicting on this point. Brown maintained the driver did not ask

her if she wanted to wear a seat belt. The driver vociferously disagreed and maintained that

Brown refused the restraints.

Evidence at trial showed that at one point on the bus route, the driver stopped for traffic
and released the brake when traffic started to move again; however, she had to make a sudden
stop when the vehicle in front of her stopped abruptly. Brown was thrown from her wheelchair
and sustained injuries. Brown sued the driver and SunTran, claiming the driver was negligent in
following other vehicles too closely and in not asking Brown whether she wanted to be secured
by a seatbelt.

By the time of the trial, Brown had passed away from causes unrelated to this accident.
Nunez, the personal representative of Brown’s estate, presented expert testimony that the driver

fell below the standard of care by not asking Brown whether she wanted to wear the safety
restraints provided by SunTran. The expert relied on Brown’s unsworn declaration prepared for

litigation purposes. The jury found SunTran 70% at fault and Brown 30% at fault and awarded

$110,744.50 in damages to Nunez.

SunTran appealed. Relying on Atchison, T. & S. F. Ry. Co. v. France, 54 Ariz. 140, 94

P.2d 434 (1939), SunTran argued the trial court erroneously instructed the jury that the standard
of care for common carriers is “the highest degree of care” because that standard is a remnant

from a different time and lacks a sound theoretical underpinning. The court of appeals disagreed.
It rejected SunTran’s interpretation of Atchison. In that case, the trial court instructed the jury
that the standard of care for a common carrier was “the highest degree of care practicable under
the circumstances,” and it refused to give the defendant's requested instruction that “negligence

is the omission to do something which a reasonably prudent man . . . would do [and] it is not
intrinsic or absolute, but is always relative to the surrounding circumstances . . . .” Id. at 143-44,
94 P.2d at 436. The jury returned a verdict for the plaintiff.

On appeal in Atchison, the supreme court stated that, even though the highest degree of
care instruction accurately stated the law, given the paucity of evidence in that case it was by
itself insufficient. The trial court also should have given defendant's requested instruction. Id.

In this case, the court of appeals noted, SunTran did not request an additional instruction
to clarify the standard of care for the jury. Rather, it requested a reasonable care instruction to
supplant the highest degree of care instruction. Additionally, because there was sufficient
evidence of SunTran's negligence, the failure to give its reasonable care instruction was not
prejudicial to SunTran. Accordingly, the court of appeals found no error in the trial court’s
refusal to give SunTran's requested instruction. It noted the supreme court as recently as 1998
reaffirmed that the standard of care for a common carrier is “the highest degree of care.” See
Napier v. Bertram, 191 Ariz. 238, 242 n. 9, 954 P.2d 1389, 1393 n. 9 (1998). Accordingly, the
court affirmed the judgment in favor of Nunez.

SunTran seeks review, noting that New York rejects the highest degree of care standard
in favor of a reasonable person standard. See Bethel v. New York City Transit Authority, 703
N.E.2d 1214 (N.Y. 1998). It further claims there is a disparity in relevant Arizona law
concerning the relevant standard of care. Compare Block v. Meyer, 144 Ariz. 230, 234, 696 P.2d
1379, 1383 (App. 1984) (upholding a jury instruction that required only a reasonable duty of care
for common carriers), with S. Pac. Co. v. Hogan, 13 Ariz. 34, 37-38, 108 P. 240, 241 (1910)
(holding that, as a common carrier of passengers, a railroad is bound to exercise the highest
degree of care practicable under the circumstances and that a passenger injury caused by the
derailing of a train triggers a presumption of negligence).

ISSUE:

Did the court of appeals err in ruling that SunTran, as a common carrier,
owed a duty to conduct itself with the highest degree of care?

This Summary was prepared by the Arizona Supreme Court Staff Attorneys’ Office solely for educational
purposes. It should not be considered official commentary by the Court or any member thereof or part of any
brief, memorandum, or other pleading filed in this case.

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ARIZONA SUPREME COURT

ORAL ARGUMENT CASE SUMMARY

CITY OF TUCSON v. STATE OF ARIZONA; SOUTHERN
ARIZONA LEADERSHIP COUNCIL and SEN. JONATHAN PATON,

CV-11-0150-PR

PARTIES:

Petitioners: State of Arizona (“State”)
Intervenors Southern Arizona Leadership Council and Senator Jonathan Paton

Respondent: City of Tucson (“City” or “Tucson”)

FACTS:

Arizona Constitution article 13, section 2 (“article 13, section 2”) authorizes a city with a
population over 3,500 to establish a charter to govern itself. A charter generally grants a city
autonomy over matters of solely local concern. Tucson is chartered under the Arizona
Constitution.

The City charter applies Title 16 of the Arizona Revised Statutes (“A.R.S.”), which
concerns candidate elections, to the City. The charter says the statutes will “govern the holding
of primaries and nominations of elective officers. The mayor and council shall have power to
make any further and additional provisions relating to primaries and nominations of officers not
repugnant or contrary to the provisions of the constitution and the laws of the state….” Tucson
City Charter (“Charter”), chapter XVI, section (“§”) 2. City council members are nominated by
ward. They are then elected by at-large, general elections. Both the primary and general
elections are partisan.

In 2009, the state legislature enacted a law (“Senate Bill or SB 1123”) that amended
A.R.S. § 9-821.01, concerning Arizona city and town elections. SB 1123 forbids cities and
towns from holding partisan elections. A.R.S. § 9-821.01(B). It also requires that only voters
from a given district or ward elect that district or ward’s representatives. § 9-821.01 (C). At the
time the governor signed SB 1123 into law, Tucson was the only Arizona municipality that
conducted either partisan elections or at-large city elections for ward or district representatives.
In passing SB 1123, “[t]he legislature [found] that the conduct of elections described in this
section is a matter of statewide concern.” A.R.S. § 9-821.01(A).

After the governor signed the bill, the City challenged its constitutionality. The City
claimed it conflicted with the City charter on matters of purely municipal concern. Senator
Paton and the Southern Arizona Leadership Council intervened as defendants. The trial court
found the statute pertained to matters of statewide interest and granted defendants’ motions for
summary judgment. The court of appeals reversed, with Judge Espinosa dissenting in part.

ISSUES:

Petitioners Intervenors:

Does the Charter conflict with the prohibition on partisan elections contained in
A.R.S. § 9-821.01.B given that the Charter (1) does not expressly provide for
partisan city council elections and (2) incorporates the general laws of the State of
Arizona to govern related issues that are not expressly addressed in the Charter?

Petitioner State:

1. Are a municipality’s voting procedures subject to state regulations, where
(1) the Legislature found that certain municipal voting procedures are of
statewide concern; (2) the evidence presented at the summary judgment
stage supported the legislative finding; and (3) federal law imposes
consequences on the State based on the voting procedures of its political
subdivisions?

2. Did the court of appeals err in holding that the city charter provision at
issue conflicted with A.R.S. § 9-821.01(B), where that statute can be
enforced without amending Tucson’s charter?

DEFINITIONS:

At-large election: Election in which every voter may vote, as opposed to election by
geographic district (or ward) within the city or town.

Autonomy: Independence to decide how to self-govern.

Charter: The city equivalent of a state or federal constitution.

Intervenor: An individual or organization that asks the trial court for and has been
granted permission to intervene (join) in the case as a litigant.

Partisan election: Election in which candidates indicate the political party to which they
belong and in which political parties may participate openly.

Ward: Political district within a city or town.

This Summary was prepared by the Arizona Supreme Court Staff Attorneys’ Office solely for educational
purposes. It should not be considered official commentary by the Court or any member thereof or part of any
brief, memorandum, or other pleading filed in this case.

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