                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 27 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TAMERA TORRES-MARTINEZ,                          No. 14-15564

              Plaintiff-Appellant,               D.C. No. 4:11-cv-00519-DCB

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                       Argued and Submitted April 14, 2016
                            San Francisco, California

Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.

      Tamera Torres-Martinez appeals the district court’s judgment awarding

Torres-Martinez $40,000 in damages for a January 2009 collision with a United




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
States postal truck that left Torres-Martinez injured. We affirm. Because the

parties are familiar with the history of the case, we need not recount it here.

      The district court correctly applied Arizona law to conclude that the collision

did not cause Torres-Martinez’s continuing subjective complaints of pain. Under

Arizona law, the elements of a negligence claim are “the existence of a duty owed,

a breach of that duty, and damages causally related to such breach.” Smethers v.

Campion, 108 P.3d 946, 949 (Ariz. Ct. App. 2005) (emphasis added). Thus,

Torres-Martinez had the burden to prove that causal relationship by the

preponderance standard, and the district court properly applied that standard in

determining that certain damages were not caused by the accident. See Godwin v.

Farmers Ins. Co. of Am., 631 P.2d 571, 573 (Ariz. Ct. App. 1981), Gipson v.

Kasey, 150 P.3d 228, 230 (Ariz. 2007).

      Torres-Martinez argues that the “reasonable certainty” standard, not the

preponderance of evidence standard, should apply. However, the reasonable

certainty standard (which, in Arizona at least, requires less proof than the

preponderance standard) only applies to the extent of damages awarded, not to the

question of damage causation. As the commentary to Restatement (Second) of

Torts § 912 (1979), which discusses the “reasonable certainty” test (and which has




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been favorably cited by Arizona courts, see, e.g., Felder v. Physiotherapy Assocs.,

158 P.3d 877, 885 (Ariz. Ct. App. 2007)) provides:

      In all of these cases the recovery of damages for a particular harm is
      dependent upon proof that the harm occurred as the result of the
      tortious conduct, and normally the plaintiff can recover damages for
      the harm only by proving this with the same degree of certainty as that
      required in proving the existence of the cause of action.

Restatement (Second) of Torts § 912 cmt. a (1979).

      The purpose of the “reasonable certainty” test is to relieve the plaintiff of

proving damages with absolute certainty, not to relieve the plaintiff of proving

causation by a preponderance of the evidence. See id. Thus, the district court

correctly applied Arizona law in its causation findings.

      The district court did not clearly err in its consideration of expert testimony.

The district court assessed and resolved conflicting medical testimony on the

question whether the collision caused Torres-Martinez’s continuing complaints of

pain. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (“Where

there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.”).



      AFFIRMED.




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