                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KRISTEN BURNHAM, Individually and                No. 09-16581
as Representative of the Estate of Caroline
Burnham and as Representative of Ethan J.        D.C. No. 2:07-cv-08017-DGC
Mayne, a minor,

              Plaintiff - Appellant,             MEMORANDUM *

  v.

UNITED STATES OF AMERICA and
RICHARD ALAN YOUNG,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                      Argued and Submitted October 7, 2010
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD and GRABER, Circuit Judges, and CARNEY,** District
Judge.


      The district court did not abuse its discretion by excluding opinion evidence

from Mr. Delmar Foote. But Foote also provided evidence of his own visual

observations that were relevant and not opinion. His observations that debris

consistent with a collision was all on Caroline Burnham’s side of the road and that

the gouge in the asphalt was on her side of the road would support an inference by

the trier of fact that the collision occurred on Burnham’s side of the road. Foote’s

connection of the gouge to an automobile part with which his experience gave him

familiarity was admissible lay testimony. See, e.g., United States v. Durham, 464

F.3d 976, 982–83 (9th Cir. 2006) (lay testimony based partly on experience is not

the same thing as the specialized knowledge “within the scope of Rule 702, but

rather is based upon a layperson’s personal knowledge” (internal quotation marks

omitted)). The police officer’s observation of skid marks extending from Young’s

lane to Burnham’s lane also supported a possible inference that the collision

occurred in Burnham’s lane.




      **     The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.

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       Construing Foote’s testimony about debris and gouges and the police

observation of the skid marks in the light most favorable to Burnham’s estate, this

evidence raised a genuine issue of material fact as to who actually caused the

accident. Enough evidence exists to support a jury verdict in Burnham’s favor at

trial, precluding the district court from granting summary judgment against her.

See Fed. R. Civ. P. 56(c)(2).




      With regard to whether the United States is vicariously liable for Chief

Young’s possible negligence under the Federal Tort Claims Act, Arizona’s

doctrine of respondeat superior has evolved since our decision in Hartzell v. United

States, 786 F.2d 964 (9th Cir. 1986). A subsequent decision of the Arizona Court

of Appeals holds that, when an employee is driving for a regular meal in an

employer-provided vehicle away from home, even after he has stopped performing

his duties for the day, the employee is within the scope of his employment and his

employer can be vicariously liable. McCloud v. Kimbro, 228 P.3d 113 (Ariz. Ct.

App. 2010). We “must follow the state intermediate appellate court decision

unless [we] find[ ] convincing evidence that the state’s supreme court likely would

not follow it.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir.

2007). The substantive facts and reasoning of McCloud are materially similar to


                                          3
the operative facts of this case. The Arizona Court of Appeals in McCloud

explained that it could not find any specific “Arizona decision articulating an

employer’s tort liability for the conduct of an off-duty employee assigned to

out-of-town work.” 228 P.3d at 115. There is no good reason to discount this

development in Arizona law. See Winchell v. U.S. Dep’t of Agric., 961 F.2d 1442,

1444 (9th Cir. 1992). Applying McCloud, we hold that Young was acting within

the scope of his employment at the time of the collision.




      Because Young was within the scope of his employment with the United

States under Arizona law, the United States must be substituted for him as the sole

defendant. 28 U.S.C. § 2679(d)(3). We therefore affirm the district court’s grant

of summary judgment as to Young, though on different grounds, reverse the

district court’s grant of summary judgment for the United States, and remand to the

district court for proceedings consistent with this opinion.




      AFFIRMED in part, REVERSED in part, and REMANDED. Costs on

appeal awarded to appellant.




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