                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 11 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRANDON SMITH,                                  No.    17-16820

                Plaintiff-Appellant,            D.C. No. 2:12-cv-02391-FJM

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

                Defendants-Appellees.

                   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 designation.
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 district 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 attempt 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 reasonable 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 law 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 then renewed its motion for judgment as a matter of law on the
negligence claim.

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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 underlying 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 court concluded that Arizona law

required 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, 1113–15 (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 these three cases,

no Arizona case establishes that suicide is a superseding cause unless the defendant

caused the underlying mental illness.


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      The district court failed to analyze Appellant’s claim under applicable

Arizona tort law relating to applicable duty and foreseeability concepts. Under

Arizona law, whether 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 event 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 factual issue of whether Appellant’s suicide attempt was

foreseeable. When Appellant’s stepmother 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 had 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 the


                                          4
court’s award of attorneys’ fees and non-taxable costs.

REVERSED and REMANDED.




                                         5
                                                                              FILED
Smith v. City of Chandler, Case No. 17-16820
                                                                     DEC 11 2019
Rawlinson, Circuit Judge, concurring in part and dissenting in part:
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
      Although I agree with the majority that the award of attorneys’ fees to the

defendants should be reversed, I respectfully disagree that the district court erred in

granting judgment as a matter of law in favor of the City. In my view, the district

court’s ruling was consistent with Arizona precedent.

      In Tucson Rapid Transit Co. v. Tocci, 414 P.2d 179, 183 (Ariz. Ct. App.

1966), the Arizona Court of Appeals noted the general rule that “a person will not

be relieved of liability by an intervening force which could reasonably have been

foreseen.” The court specifically acknowledged that if the “intervening force takes

the form of suicide the practically unanimous rule is that such act is a new and

independent agency which does not come within and complete a line of causation

from the wrongful act to the death.” Id. In that circumstance, the court explained,

the defendant would not be “liable for the suicide.” Id. (quoting 11 A.L.R.2d 751,

757 (1950)).

      The court also relied upon the Restatement (Second), Torts § 455 (1965), for

the proposition that unless the “actor’s negligent conduct . . . brings about the

delirium or insanity of another,” the negligent actor is not “liable for harm done by

the other to himself while delirious or insane.” Id. at 184. The district court’s



                                           1
ruling was consistent with this analysis.

      In a similar vein, the Arizona Court of Appeals ruled in Pompeneo v. Verde

Valley Guidance Clinic, 249 P.3d 1112, 1114 (Ariz. Ct. App. 2011) that its prior

ruling in Tocci precluded liability on the part of a mental health clinic for an

unsuccessful suicide attempt by the plaintiff. The court held that Tocci was

“directly applicable to [Plaintiff’s] claim.” Id. at 1115. Despite the allegations that

his attempted suicide was caused by the clinic’s negligence, the court observed that

the plaintiff “presented no facts to challenge the contention that his attempted

suicide was volitional.” Id. Because the attempted suicide was intentional, “his

actions constituted a supervening cause as a matter of law.” Id.

      A third Arizona case supports the district court’s decision. In Maricopa Cty.

v. Cowart, 471 P.2d 265, 267 (Ariz. 1970) (in banc), the Arizona Supreme Court

cited Tocci and reiterated:

                    [T]he almost universal rule is that the suicide by the
             injured party is a superseding cause which is neither foreseeable
             nor a normal incident of the risk created and therefore relieves
             the original actor from liability for the death resulting from the
             suicide.

      Nothing about the facts of this case takes it outside the holdings of these

three Arizona cases, namely that suicide or attempted suicide is not foreseeable and

constitutes an intervening event precluding liability under a negligence theory of

                                            2
liability. Trial testimony established that the officers were not the cause of

Plaintiff’s suicidal state. Admittedly, Officer Hawkins yelled for Plaintiff to drop

the knife, but Plaintiff had already placed the knife to his neck at that point.

Plaintiff had a long history of making suicidal threats, of polysubstance abuse, and

of self-mutilation. Plaintiff’s mother informed the officers that Plaintiff was

suicidal on that night and “wanted to hurt himself.” Plaintiff himself testified that

he “wanted to die” and “was glad” when he stabbed himself in the neck. Finally,

the jury absolved the City and the officers of all liability for excessive force.

Under these circumstances, the district court correctly applied Arizona negligence

law in concluding that Plaintiff’s intentional, attempted suicide was an intervening

cause of his injuries. See id.

      I would affirm the judgment of the district court.




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