                                    IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                    MANUEL PONCE, Plaintiff/Appellant,

                                       v.

                PARKER FIRE DISTRICT, Defendant/Appellee.

                             No. 1 CA-CV 13-0038
                              FILED 3-27-2014


             Appeal from the Superior Court in La Paz County
                        No. S1500CV201000165
               The Honorable Randolph A. Bartlett, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Offidani & Kresin, P.C., Phoenix
By Daniel R. Offidani

Counsel for Plaintiff/Appellant

Murphy, Schmitt, Hathaway & Wilson, P.L.L.C., Prescott
By Milton W. Hathaway, Jr.

Counsel for Defendant/Appellee



                                   OPINION

Judge Jon W. Thompson delivered the Opinion of the Court, in which
Judge Peter B. Swann and Chief Judge Diane M. Johnsen joined.
                         PONCE v. PARKER FIRE
                           Opinion of the Court

T H O M P S O N, Judge:

¶1           Plaintiff/appellant Manuel Ponce appeals from the trial
court’s decision granting summary judgment to defendant/appellee
Parker Fire District (PFD), finding Ponce’s notice of claim untimely and
the complaint therefore barred by Arizona Revised Statutes (A.R.S.)
section 12-821.01 (2003). For the following reasons, we reverse and
remand to the trial court.

               FACTUAL AND PROCEDURAL HISTORY

¶2           Ponce and Joyce Curren were next-door neighbors. On
August 16, 2009, a fire began on Curren’s property. The fire reached
Ponce’s property and damaged his garage.

¶3            After PFD suppressed the fire, Captains James Hall and
Jeffery Rather conducted a visual inspection of the exterior of Ponce’s
home, and Hall entered the home to check for “hot spots.” Hall touched
the walls and ceiling to feel for heat and, after the inspection, which lasted
about five minutes, he did not believe there was risk of a subsequent fire.
Later that day, Captain Robin Aspa used a thermal imaging camera on the
exterior of Ponce’s home to check for hot spots and saw no heat that
caused alarm. Aspa did not use the thermal imaging camera on the
interior of Ponce’s home.

¶4             On August 17, PFD successfully suppressed a small
rekindle 1 at the Curren property. Over the next few days, Fire Chief John
Rather and Hall visited the property several times to check for rekindles.

¶5             On August 21, Ponce’s home was almost completely
destroyed by fire. Experts subsequently concluded that the August 21 fire
was most likely caused by embers from the August 16 fire that had
traveled through openings created by firefighters in the fascia board into
the attic of the Ponce home, where they became embedded in insulation
and ignited days later.

¶6            On March 5, 2010, Ponce submitted a notice of claim to PFD.
Ponce filed a complaint in Maricopa County against Curren on March 26.
On August 12, 2010, he filed an amended complaint adding a claim of

1       A rekindle refers to a second fire caused by an ember from an
earlier fire that reignites.




                                      2
                         PONCE v. PARKER FIRE
                           Opinion of the Court

negligence against PFD for failing to fully extinguish the August 16 fire
and allowing it to rekindle. In answering the complaint, PFD asserted as
an affirmative defense that Ponce had failed to file a timely notice of claim.

¶7            On January 6, 2012, PFD filed a motion for summary
judgment. PFD argued that the notice of claim was filed 196 days after the
second fire and therefore was untimely under the 180-day limit imposed
by A.R.S. § 12-821.01. PFD further argued that Ponce had not disclosed an
expert witness on the standard of care for firefighters, noting that Curren’s
disclosed expert, Patrick Andler, was not qualified as an expert in
firefighting procedures or procedures to prevent rekindles, called
overhaul procedures. PFD argued that, without expert testimony, a jury
could not determine that PFD had been negligent.

¶8            The court granted PFD’s motion for summary judgment,
ruling that Ponce’s notice of claim was untimely pursuant to A.R.S. § 12-
821.01. Ponce appealed. We have jurisdiction pursuant to A.R.S. § 12-
2101(A)(1) (Supp. 2014).

                               DISCUSSION

¶9            Summary judgment may be granted when “there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a). In reviewing a
motion for summary judgment, we determine de novo whether any
genuine issues of material fact exist and whether the trial court properly
applied the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7
P.3d 136, 139 (App. 2000). We view the facts and the inferences to be
drawn from those facts in the light most favorable to the party against
whom judgment was entered. Scalia v. Green, 229 Ariz. 100, 102, ¶ 6, 271
P.3d 479, 481 (App. 2011). We review legal issues de novo. Corbett v.
ManorCare of America, Inc., 213 Ariz. 618, 623, ¶ 10, 146 P.3d 1027, 1032
(App. 2006).

¶10           Ponce asserts that, even if his notice of claim was untimely,
PFD waived its notice of claim defense by participating in the litigation for
more than a year before moving for summary judgment on the issue.
Ponce argues that PFD actively participated in disclosure, discovery, and
ten depositions, including defending depositions of five firefighters
concerning the suppression and overhaul efforts. PFD counters that it did
not notice any of the depositions or initiate any discovery requests. The
record shows that after PFD raised the notice of claim defense in its
answer, it then successfully moved for the case to be transferred to La Paz



                                      3
                         PONCE v. PARKER FIRE
                           Opinion of the Court

County from Maricopa County over the objection of both Curren and
Ponce. Before filing a motion for summary judgment, PFD stipulated to
the dismissal of another plaintiff and signed a joint pretrial statement. As
discussed, in its motion for summary judgment, PFD both asserted the
notice of claim defense and also argued substantively that the claim
against it should be dismissed for want of expert testimony.

¶11            An assertion that a plaintiff did not comply with the notice
of claim statute is an affirmative defense subject to waiver. City of Phoenix
v. Fields, 219 Ariz. 568, 574, ¶ 27, 201 P.3d 529, 535 (2009). A defendant
that has raised the defense in its answer may waive the defense by
subsequent conduct. Id. at ¶¶ 28-29, citing Jones v. Cochise County, 218
Ariz. 372, 379-80, ¶¶ 22-23, 27, 187 P.3d 97, 104-05 (App. 2009) (finding
waiver when the government entity substantially participates in
litigation). The defense is waived when the government entity engages in
substantial conduct to litigate the merits that would not have been
necessary had the defendant not delayed in asserting the defense. Fields,
219 Ariz. at 575, ¶ 30, 201 P.3d at 536. Put differently, actively litigating
issues unrelated to the notice of claim defense waives the defense. County
of La Paz v. Yakima Compost Co., 224 Ariz. 590, 597-98, ¶¶ 9, 11, 233 P.3d
1169, 1176-77 (App. 2010). A party asserting a notice of claim defense
must seek prompt resolution of it. Id. at ¶ 11.

¶12           PFD argues that in anticipation of Ponce invoking the
discovery rule to demonstrate the timeliness of his notice of claim, PFD
needed to depose Ponce to establish his awareness of the fires; it contends
it could not assert its notice of claim defense without this information. But
after waiting to depose Ponce, PFD’s motion argued simply that Ponce
should have known that the second fire may have been related to the first
merely because they occurred within a few days of each other. PFD did
not require Ponce’s deposition to make this argument; it could have
moved for summary judgment under this theory at the commencement of
litigation. Assuming for purposes of argument that Ponce’s deposition
was helpful to the argument PFD wanted to present on its notice of claim
defense, PFD would not have waived the defense simply by participating
in that one deposition. However, PFD actively litigated the merits of the
case, making disclosures, participating in written discovery, filing a joint
pretrial statement, moving for a change of venue, and participating in nine
additional depositions, meaning it “substantially litigated issues . . . that
were unrelated to the accrual issue.” La Paz, 224 Ariz. at 597-98, ¶ 9, 233
P.3d at 1176-77. These actions all were unnecessary to PFD’s notice of
claim defense.



                                     4
                         PONCE v. PARKER FIRE
                           Opinion of the Court

¶13           PFD also contends it needed the deposition testimony of
Patrick Andler, Curren’s expert witness, because PFD “decided to address
the insufficiency of the evidence regarding negligence” in the same
motion for summary judgment it intended to file on the notice of claim
issue. Promptly seeking judicial resolution of the notice of claim defense,
as Fields requires, would not have precluded PFD from later moving for
summary judgment on the merits or otherwise addressing the
insufficiency of the evidence if the notice of claim defense failed. Had a
prompt motion to dismiss or for summary judgment on the notice of claim
been successful, all the resources used to litigate the merits would not
have been necessary. Rather than seeking prompt resolution of its notice
of claim defense, PFD elected to delay, and address the merits of the
action. We conclude that, as a matter of law, PFD waived its notice of
claim defense by failing to seek prompt judicial resolution of that defense.

¶14          PFD further argues that regardless of the notice of claim
defense, the grant of summary judgment should be affirmed on the
ground that Ponce had not retained a qualified expert on firefighting
techniques and so could not establish that PFD had been negligent.
Expert testimony is necessary to prove professional negligence when the
matter at issue is not within the knowledge of the average layperson.
Hunter Contracting Co. v. Superior Court, 190 Ariz. 318, 320-21, 947 P.2d 892,
894-95 (App. 1997).

¶15           PFD argues that Andler was not qualified as an expert in
firefighting or overhaul techniques or rekindled fires. Ponce responds
that he does not rely on Andler as his expert but relies on PFD Fire Chief
John Rather and other PFD firefighters to establish the standard of care
and its breach. Ponce contends that PFD was negligent in failing to detect
an ember that settled in insulation in his attic ceiling after the August 16
fire. Specifically, Ponce asserts that PFD was negligent in not using
thermal imaging equipment in the interior of his house after the August
16 fire.

¶16          Chief Rather testified that the standard operating procedure
for thermal imaging cameras was to “[u]se it on everything that you can.”
The cameras can detect heat through a wall. He further testified that the
standard operating procedure for overhaul operations was to perform
them “to the department’s standard.” PFD used the thermal imaging
camera on the exterior of Ponce’s home only; inside the home, a firefighter
checked for hotspots only by touching the walls and the ceilings, an
examination lasting approximately five minutes.



                                      5
                         PONCE v. PARKER FIRE
                           Opinion of the Court

¶17           PFD does not dispute that Rather is qualified to serve as an
expert, but asserts that in other deposition testimony Rather stated that
PFD followed department procedures. PFD further points to Rather’s
affidavit dated over six months after his deposition in which he sought to
clarify his deposition testimony and asserted that “Parker Fire District’s
firefighters properly handled the overhaul process and fully followed the
District’s overhaul procedures.”

¶18          We must view the facts in the light most favorable to Ponce,
the non-moving party. Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55, ¶
8, 156 P.3d 1157, 1160 (App. 2007). It can be reasonably inferred from
Rather’s deposition testimony that, while PFD generally followed
standard operating procedures in this case, the failure to use thermal
imaging cameras inside Ponce’s house did not comply with department
procedures. A competing inference that PFD complied with its own
procedures and “properly handled the overhaul” can be drawn from
Rather’s other statements.

¶19            That a defendant shows it conducted itself in the usual way
does not by itself prove that it met the standard of care. Texas & Pacific Ry.
Co. v. Behymer, 189 U.S. 468, 470 (1903) (“What usually is done may be
evidence of what ought to be done, but what ought to be done is fixed by
a standard of reasonable prudence, whether it usually is complied with or
not.”); see also The T.J. Hooper v. N. Barge Corp., 60 F.2d 737, 740 (2d Cir.
1932) (“[I]n most cases reasonable prudence is in fact common prudence;
but strictly it is never its measure.”). However, when a defendant has
departed from rules of its own making governing the conduct of its
employees, a plaintiff may thereby demonstrate breach of an appropriate
standard of care. Thropp v. Bache Halsey Stuart Shields, Inc., 650 F.2d 817,
820 (6th Cir. 1980) (“When a defendant has disregarded rules that it has
established to govern the conduct of its own employees, evidence of those
rules may be used against the defendant to establish the correct standard
of care.”); Babcock v. Chesapeake and Ohio Ry. Co., 404 N.E.2d 265, 275 (Ill.
App. 1979) (holding defendant’s rules, which constitute guidelines for the
operation of its trains, can be used as evidence of defendant’s standard of
care); W. Page Keeton et al., Prosser & Keeton on Torts § 33, at 195-96 (5th
ed. 1984).

¶20          It will be a question for the jury to determine whether PFD
met the standard of care. Viewing Rather’s statements and the entire
record in the light most favorable to Ponce, a question of fact exists
regarding fire department standards in the use of the thermal imaging
equipment. Summary judgment is not appropriate on that ground.


                                      6
                       PONCE v. PARKER FIRE
                         Opinion of the Court

                            CONCLUSION

¶21          Because of our holding that PFD waived its notice of claim
defense we need not address the timeliness of Ponce’s notice of claim. We
further conclude that summary judgment is not appropriate on the
ground that Ponce had not identified an expert on fire fighting
procedures. Ponce relies on the expertise of PFD Fire Chief John Rather,
whose expertise PFD does not challenge, and Rather’s statements
regarding policies and standards at least raise a question of fact. The
superior court’s grant of summary judgment is reversed and the matter
remanded.




                                  :MJT




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