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Hutcherson v. City of Phoenix
961 P.2d 449, Ariz., AZ, 07/02/1998
Category Victim v. Third Party 
Topic Government, General 
Filename Failure to Intervene, Protect or Respond 
Crime Homicide 
Location Residence 
Prevailing Party Plaintiff 
Other Parties None 
Holding

Statement of Facts: Chiquita Burt made a 911 call in Phoenix and spoke with emergency operator Belinda Banda. Burt informed Banda that her former boyfriend, Craig Gardner, had threatened to kill her. Burt stated that she was at the apartment of her new boyfriend, Darryl Usher, but knew that Gardner was actively trying to locate her. Banda told Burt that an officer would be dispatched. Twenty-two minutes after Burt's 911 call, Gardner went through the window of Usher's apartment and fatally shot both Usher and Burt. Gardner then killed himself. The victims' mothers brought wrongful death actions against the City of Phoenix for its handling of the 911 call. The plaintiffs claimed that the operator had improperly categorized Burt's call as Priority 3, the Phoenix Police Department's lowest rating. During this period, Priority 3 calls had an average response time of 32.6 minutes. Contrarily, Priority 2 calls had an average response time of 13.6 minutes and Priority 1 calls had an average response time of 4.4 minutes. When witnesses at Usher's apartment complex called 911 to report that shots had been fired, the Phoenix police arrived within 7 minutes. The jury found the city negligent and awarded Burt's mother $600,000 and Usher's mother $1,100,000. The jury assigned seventy-five percent of the liability to the city. The trial judge denied the city's post-trial motions for a new trial, remittitur, or judgment notwithstanding the verdict. The city appealed. Holding: The Court of Appeals affirmed the liability and damage verdicts, but reversed and remanded for a new trial on the apportionment of fault. The city appealed the decision by the Court of Appeals. The Supreme Court of Arizona vacated the decision by the Court of Appeals and affirmed the judgment of the trial court. The Court held that under Arizona's comparative negligence statute, a jury can compare the negligent conduct of one tortfeasor with the intentional conduct of another. The city argued that its share of the award was disproportionate to that of the perpetrator. However, the Court refused to second-guess the jury's allocation of fault after concluding that the jury may have distinguished between culpability and responsibility for foresight and avoidance. 


Damage Award $1,700,000 
Victim's Counsel     
Plaintiff's Counsel Richard Treon, Phoenix 
Plaintiff's Expert      
Defense Counsel Georgia Station, Phoenix 
Defense Expert

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