Lee v. United States Department of Homeland Security

• Court: District Court, D. Arizona
• Decided: February 22, 2024
• Docket: 2:21-cv-00648
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Leena Lee, ) No. CV-21-00648-PHX-SPL ) 9 ) 10 Plaintiff, ) FINDINGS OF FACT AND vs. ) C ONCLUSIONS OF LAW 11 ) ) United States Department of Homeland ) 12 Security, et al., ) 13 ) ) 14 Defendant. )

15 On April 16, 2021, Plaintiff initiated this negligence action. (Doc. 1). In the 16 operative First Amended Complaint for Damages, Plaintiff asserts a claim against 17 Defendant the United States pursuant to the Federal Torts Claims Act 28 U.S.C. 2671, et 18 seq. and 28 U.S.C. 1346(b)(1), for negligence by Andrew Swierski, an employee of the 19 United States Immigration and Customs Enforcement. (Doc. 31 at ¶¶ 11–15). Plaintiff 20 seeks general compensatory damages, incurred and future special damages for medical 21 care, lost earnings or wages, out of pocket expenses, and court costs. (Doc. 31 at 4). 22 Defendant timely filed an answer on September 8, 2021. (Doc. 35). 23 The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1346(b)(1). (Doc. 24 31 at ¶ 8). 25 This action, having been tried before the Court on February 6, 2024 through 26 February 7, 2024, and the Court having carefully considered the proposed findings of fact 27 and conclusions of law (Docs. 77, 80), the Joint Proposed Pretrial Order (Doc. 79), the 28 testimony received, and the exhibits admitted into evidence, hereby makes the following 1 Findings of Fact and Conclusions of Law, pursuant to Fed. R. Civ. P. (“Rule”) 52(a) and 2 LRCiv 52.1: 3 FINDINGS OF FACT 4 1. On October 24, 2019, Plaintiff Leena Lee was involved in a car collision with 5 Andrew Swierski, an employee of United States Immigration and Customs 6 Enforcement (“ICE”). (Trial Tr. Day 1 AM at 18:13–25; Trial Tr. Day 1 PM at 7 120:1–3).1 8 2. At all relevant times, Mr. Swierski was acting in the course and scope of his 9 employment with the ICE. (Trial Tr. Day 1 AM at 18:20–23). 10 3. As part of his employment, Mr. Swierski received training regarding the safe 11 operation of a motor vehicle and obtained his commercial driver’s license. (Trial Tr. 12 Day 1 AM at 22:11–23:5). 13 4. One of Mr. Swierski’s responsibilities as an employee of ICE was to be attentive to 14 the roadway as he operated his vehicle so that he could properly respond to any 15 changes in roadway conditions that he may encounter. (Trial Tr. Day 1 AM at 23:22– 16 24:7, 24:11–25:3, 26:17–24). 17 5. The accident occurred at the intersection of State Route (“SR”) 87 and SR 187, in 18 Pinal County, Arizona. (Trial Tr. Day 1 AM at 19:1–3; Exhibit 101, Certified Copy 19 of Arizona Department of Public Safety Arizona Crash Report, “Ex. 101” at 20 DPS000001). 21 6. On the day of the accident, Mr. Swierski reported to the Eloy Detention Center at 22 23 approximately 3:00 a.m. to pick up documents and transport them to the Mesa 24 Gateway Airport. (Trial Tr. Day 1 AM at 28:7–17). 25 26 1 Citations to the trial transcripts refer to the transcripts by day. “Day 1 AM” refers to the transcript of the proceedings held the morning of February 6, 2024, reflected at Minute 27 Entry 87. “Day 1 PM” refers to the transcript of the proceedings held during the afternoon on February 6, 2024, reflected at Minute Entry 88. “Day 2” refers to the transcript of the 28 proceedings held on February 7, 2024, reflected at Minute Entry 89. 1 7. Shortly after Mr. Swierski arrived at the Eloy Detention Center, he got into a 2013 2 white Ford Explorer that was owned by the United States government. (Trial Tr. Day 3 1 AM at 30:13–31:1). The documents that Mr. Swierski needed to transport were 4 already in the vehicle so once inside the vehicle Mr. Swierski headed directly to the 5 Mesa Gateway Airport. (Id.). 6 8. Every time Mr. Swierski has traveled from the Eloy Detention Center to the Mesa 7 Gateway Airport, he has traveled westbound on State Route 87, and he is very 8 familiar with the route. (Trial Tr. Day 1 AM at 28:22–24, 38:13–20). 9 9. On October 23, 2019, the day before the accident, Plaintiff reported to her job at 10 Frito-Lay in Casa Grande around 6:30 a.m. and stayed until approximately 8:00 p.m. 11 (Trial Tr. Day 1 PM at 118:9–11, 120:16–19). 12 10. During Plaintiff’s shift on October 23, 2019, Plaintiff worked approximately 14 13 hours and took breaks during the day. (Trial Tr. Day 1 PM at 120:16–21). 14 11. After Plaintiff’s shift ended, she went “went home to take a nap” because she “didn’t 15 want to stay [at work] all night long” and because she wanted “to get some rest before 16 [she] had to [return to work later that evening].” (Trial Tr. Day 1 PM at 120:22– 17 121:2). 18 12. Plaintiff’s usual route home from work included traveling along SR 187 and Plaintiff 19 was aware that that there was a stop sign at the intersection of SR 187 and 87. (Trial 20 21 Tr. Day 1 PM at 120:9–16, 121:3–12). 22 13. Plaintiff was driving a 2015 Nissan Sentra. (Trial Tr. Day 1 PM at 120:17–18). 23 14. Plaintiff’s vehicle had automatic lights so when she started her car her headlights 24 automatically turned on. (Trial Tr. Day 1 PM at 120:17–23). 25 15. On October 23, 2019, Plaintiff returned to work at Frito-Lay at approximately 26 11:00 p.m. to attend a training. (Trial Tr. Day 1 PM at 121:23–24). 27 28 1 16. Once the training was over, Plaintiff’s workplace was starting to get “hectic.” The 2 warehouse was “jammed up,” the “crane machines were down,” and “the belts were 3 clogged and needed to be fixed.” (Trial Tr. Day 1 PM at 122:3–10). 4 17. “So [Plaintiff] stayed past the training in order to help alleviate those issues.” (Trial 5 Tr. Day 1 PM at 122:11–13). 6 18. Plaintiff worked approximately three or four hours and left her workplace on October 7 24, 2019, between 2:00 a.m. and 3:00 a.m. (Trial Tr. Day 1 PM at 122:14–18). 8 19. Plaintiff worked approximately seventeen to eighteen hours between the evening of 9 October 23, 2019, and the early morning of October 24, 2019. (Trial Tr. Day 1 PM 10 at 142:8–19). 11 20. Plaintiff remembers “feeling awake” and “very clearheaded” as she was leaving her 12 workplace. (Trial Tr. Day 1 PM at 122:21–25). 13 21. Plaintiff’s last memory prior to the accident is seeing her headlights flash against the 14 gate as she was leaving her workplace. (Trial Tr. Day 1 PM at 123:1–8, 142:20– 15 143:1). 16 22. Plaintiff has no memory between leaving her workplace and waking up in the 17 hospital. (Trial Tr. Day 1 PM at 123:1–8, 141:21–142:4, 142:20–143:1). 18 23. Plaintiff was wearing a seatbelt at the time of the accident. (Ex. 101 at DPS000001). 19 24. Mr. Swierski was wearing a seatbelt at the time of the accident. (Id.). 20 21 25. The speed limit on SR 87 was 65 miles per hour (Trial Tr. Day 1 AM at 12:21–7; 22 Ex. 101 at DPS000001). 23 26. While traveling westbound on SR 87, Mr. Swierski set the cruise control to 65 miles 24 per hour. (Trial Tr. Day 1 AM at 31:5–22). 25 27. Mr. Swierski’s vehicle’s headlights were turned on. (Trial Tr. Day 1 AM at 32:14– 26 15). 27 28. The accident happened at approximately 3:50 a.m. on a clear dark night in the open 28 desert. (Trial Tr. Day 1 AM at 32:8–9; Trial Tr. Day 1 PM at 143:5–7). 1 29. There were no obstructions to Mr. Swierski’s visibility as he approached the 2 intersection of SR 87 and SR 187. (Trial Tr. Day 1 AM at 28:25–29:3, 32:16–21). 3 30. During the moments leading up to the accident, Mr. Swierski testified that he had no 4 distractions. (Trial Tr. Day 1 AM at 31:25–32:7, 38:23–40:3). 5 31. During the moments leading up to the accident, Mr. Swierski testified that he was 6 alert and attentive and paying attention to his surroundings. (Trial Tr. Day 1 AM at 7 43:21–44:11). 8 32. Mr. Swierski did not have a stop sign at the intersection of SR 87 and SR 187. (Trial 9 Tr. Day 1 AM at 38:18–22). 10 33. While driving northbound on SR 187, Plaintiff approached a stop sign at the 11 intersection of SR 187 and SR 87. (Trial Tr. Day 1 AM at 96:5–8; Trial Tr. Day 1 12 PM at 119:14–16, 123:9–11). 13 34. There were no obstructions to Plaintiff’s visibility of Mr. Swierski’s vehicle or the 14 stop sign as she approached the intersection at SR 187 and SR 87. (Trial Tr. Day 1 15 AM at 102:13–103:4). 16 35. Plaintiff does not recall if she stopped at the stop sign at the intersection of SR 187 17 and SR 87. (Trial Tr. Day 1 PM at 141:24–142:1). 18 36. Plaintiff does not recall if she was turning left when she entered the intersection of 19 SR 187 and 87. (Trial Tr. Day 1 PM at 142:2–4). 20 21 37. Both vehicles were continuing in their straight lanes of traffic at impact. (Trial Tr. 22 Day 1 AM at 99:21–24; Trial Tr. Day 1 PM at 167:14–18, 171:1–5, 171:10–13, 23 207:14–17). 24 38. Plaintiff’s vehicle was moving and not stationary. (Trial Tr. Day 1 PM at 169:25– 25 170:16). 26 39. Plaintiff’s vehicle was traveling at least 25 miles per hour at impact. (Trial Tr. Day 27 1 AM at 72:4–9, 74:4–8; Trial Tr. Day 1 PM at 175:1–2). 28 1 40. Mr. Swierski’s vehicle was traveling approximately 65 miles per hour at impact. 2 (Trial Tr. Day 1 AM at 95:24–96:4; Trial Tr. Day 1 PM at 174:14–23). 3 41. Mr. Swierski never saw Plaintiff’s vehicle. (Trial Tr. Day 1 AM at 32:22–33:9, 4 44:15–18, 47:8–12). 5 42. At his deposition, Mr. Swierski testified that he does not recall whether he ever saw 6 Plaintiff’s headlights as she was approaching the intersection. (Trial Tr. Day 1 AM 7 at 41:19–42:11). 8 43. Mr. Swierski testified that he “remember[s] seeing [the headlights] out of the corner 9 of [his] eye right before impact.” (Id.). He estimated that it was “[a] split second 10 before impact.” (Id.). 11 44. At trial, Mr. Swierski testified that he does not recall whether he saw Plaintiff’s 12 headlights prior to reaching the intersection. (Trial Tr. Day 1 AM at 40:11–14, 13 44:15–18). 14 45. Mr. Swierski further testified that he recalls seeing Plaintiff’s headlights out of his 15 peripheral vision “just a second or two before impact.” (Trial Tr. Day 1 AM at 40:4– 16 10). 17 46. When describing the moments leading up to the accident, Mr. Swierski provided the 18 following testimony: 19 I was just driving straight, the cruise control, looking ahead. 20 There are a few highways that run across from I-10. There are always vehicles that are coming down. They have to stop at a 21 stop sign. On that particular night, I saw headlights coming, 22 and then just at the last minute I realized that the headlights weren’t -- the vehicle wasn’t going to stop, and I realized that 23 there was going to be a collision between the two vehicles. It 24 all happened within a matter of a couple of seconds. 25 (Trial Tr. Day 1 AM at 41:5–18). 26 47. Plaintiff is unable to describe the moments leading up to the collision because she 27 has no recollection of the accident. (Trial Tr. Day 1 PM at 137:13–17, 141:21–23). 28 1 48. The front end of Mr. Swierski’s Ford Explorer collided with the right side of 2 Plaintiff’s Nissan Sentra at the intersection of SR 87 and SR 187. (Trial Tr. Day 1 3 PM at 169:25–170:16). 4 49. No witnesses have testified that Plaintiff stopped at the stop sign at the intersection 5 of SR 87 and SR 187. 6 50. No witnesses have provided statements regarding the accident at issue in this case. 7 51. At trial, Plaintiff offered testimony from Timothy Pebler, an accident 8 reconstructionist. (Trial Tr. Day 1 AM at 49:8–24). 9 52. Mr. Pebler concluded that upon impact Mr. Swierski was traveling 65 miles per hour 10 and Plaintiff was traveling 25 miles per hour. (Trial Tr. Day 1 AM at 71:23–72:9). 11 53. Mr. Pebler also concluded that the maximum acceleration rate for Plaintiff’s vehicle 12 was .4 G and when the vehicles collided Plaintiff was traveling at a .35 G acceleration 13 rate. (Trial Tr. Day 1 AM at 75:10–21, 103:16–17). 14 54. Mr. Pebler agrees that he has seen nothing in this case to indicate that Plaintiff 15 stopped at the stop sign. (Trial Tr. Day 1 AM at 96:5–8, 96:17–20, 98:1–5). 16 55. Nevertheless, Mr. Pebler concluded that Plaintiff stopped at the stop sign because 17 “the acceleration rate of her vehicle and the distance she traveled to the area of impact 18 [] was well within the capabilities of [her] Nissan Sentra.” (Trial Tr. Day 1 AM at 19 76:13–16). 20 21 56. Mr. Pebler agrees that based on this conclusion “[Plaintiff] would have almost 22 floored her car in front of oncoming traffic.” (Trial Tr. Day 1 AM at 103:10–104:1). 23 57. Mr. Pebler opined that Plaintiff’s vehicle accelerated from the stop sign on 187 to 24 the area of impact within 3.25 seconds. (Trial Tr. Day 1 AM at 77:2–11). 25 58. Mr. Pebler also performed a time distance analysis for Mr. Swierski’s vehicle and 26 concluded that Mr. Swierski was “approximately 310 feet to the southeast of the area 27 of impact when [Plaintiff] first started to accelerate onto State Route 87.” (Id.). 28 1 59. Ultimately, Mr. Pebler opined that Mr. Swierski should have seen Plaintiff prior to 2 the collision. (Trial Tr. Day 1 AM at 77:12–78:6). Therefore, Mr. Pebler concluded 3 that Mr. Swierski was distracted because “[t]here was no preimpact deceleration or 4 anything that occurred prior to impact and [Mr. Swierski] had 3.25 seconds to be 5 able to see what was going on [] directly ahead of him. And he never took any 6 evasive action.” (Trial Tr. Day 1 AM at 79:8–18). 7 60. Mr. Pebler’s opinion is based solely on the assumption that Plaintiff stopped at the 8 stop sign. (Trial Tr. Day 1 AM at 99:16–20). Mr. Pebler agrees, however, that Mr. 9 Swierski would not have had 3.25 seconds to see and appreciate Plaintiff’s vehicle 10 continuing through the intersection if Plaintiff failed to stop and drove a consistent 11 25 miles per hour through the intersection. (Trial Tr. Day 1 AM at 98:20–99:15). 12 61. At trial, Defendant offered testimony from expert, Timothy S. Leggett, an accident 13 reconstruction engineer and a professional mechanical engineer. (Trial Tr. Day 1 PM 14 at 156:10–24). 15 62. Mr. Leggett concluded that at impact Mr. Swierski was traveling between 65 and 71 16 miles per hour and Plaintiff was traveling between 33 and 40 miles per hour. (Trial 17 Tr. Day 1 PM at 174:14–175:2). 18 63. Mr. Leggett concluded that because the damage to the front end of the Ford Explorer 19 had a lateral shift to the right, Plaintiff could not have been traveling any slower than 20 21 33 miles per hour. (Trial Tr. Day 1 PM at 169:19–170:16, 176:1–15). 22 64. Mr. Leggett further concluded that to have stopped at the stop sign and accelerate up 23 to 33 to 40 miles per hour upon impact, Plaintiff’s vehicle would have accelerated at 24 a rate of approximately .5 G or .6 G. (Trial Tr. Day 1 PM at 177:25–178:10). 25 65. Mr. Leggett testified that the maximum acceleration rate for a brand-new Nissan is 26 .4 G. (Trial Tr. Day 1 PM at 177:18–23, 178:15–22). However, because Plaintiff’s 27 Nissan Sentra was a little older, Mr. Leggett concluded that maximum acceleration 28 for Plaintiff’s vehicle was approximately .35 G. (Trial Tr. Day 1 PM at 178:15–22). 1 66. Thus, Mr. Leggett concluded that it is not possible that Plaintiff stopped at the stop 2 sign because she would have needed to accelerate at “almost double the acceleration 3 capabilities of the vehicle.” (Trial Tr. Day 1 PM at 177:25–178:10). 4 67. Mr. Leggett assumed that Plaintiff was traveling at a constant speed between 33 and 5 40 miles per hour and opined that Plaintiff traveled from the stop sign to the 6 intersection in approximately 1.2 to 1.4 seconds. (Trial Tr. Day 1 PM at 180:2–21). 7 68. Mr. Leggett explained that perception-response time is about 1.9 seconds, and it is 8 “the time that it takes the officer to perceive the threat and realize that there’s a hazard 9 presenting, and at that point, then he gets to decide what he’s going to do about it, 10 whether he’s going to swerve, brake, or both.” (Trial Tr. Day 1 PM at 179:9–25). 11 69. Ultimately, Mr. Leggett concluded that this accident was unavoidable because “the 12 time provided by the plaintiff Nissan was 1.2 to 1.4 seconds, so it was less than the 13 time that [Mr. Swierski] needed to perceive.” (Trial Tr. Day 1 PM at 179:9–24, 14 181:19–182:4). 15 70. Mr. Pebler’s conclusion did not consider any perception response time. (Trial Tr. 16 Day 1 AM at 100:18–20). 17 71. Mr. Pebler and Mr. Leggett both used PC-Crash to reach their opinions. (Trial Tr. 18 Day 1 AM at 63:16–21; Trial Tr. Day 1 PM at 171:16–24). 19 72. Despite reaching different conclusions regarding the measurements, the speed of 20 21 Plaintiff’s vehicle, and whether she stopped at the stop sign, Mr. Pebler and Mr. 22 Leggett both agreed that Plaintiff sped into oncoming traffic. (Trial Tr. Day 1 AM at 23 103:10–104:1; see Trial Tr. Day 1 PM at 176:1–15, 178:15–22). 24 73. The Court finds that Mr. Pebler’s conclusion that Plaintiff stopped at the stop sign 25 and then proceeded to accelerate into oncoming traffic at the vehicle’s maximum 26 capacity is unpersuasive. (Trial Tr. Day 1 AM at 76:10–16). 27 28 1 74. The evidence presented at trial supports a finding that Plaintiff failed to stop at the 2 sign and failed yield to oncoming traffic upon approaching the intersection of SR 87 3 and 187. 4 75. The evidence presented at trial supports a finding that Mr. Swierski kept a proper 5 lookout ahead, however, because Plaintiff failed to stop at the stop sign and yield to 6 oncoming traffic, Mr. Swierski did not have enough time to perceive the impact and 7 take action to avoid the collision. (Trial Tr. Day 1 AM at 99:4–9; Trial Tr. Day 1 PM 8 at 179:9–24, 181:19–4, 185:22–186:3). 9 76. The Ford Explorer driven by Mr. Swierski sustained heavy damage including 10 damage to the front end across the full width of its front bumper, the front bumper 11 was displaced rearward and to the right, the front axle was displaced rearward, the 12 hood was buckled rearward, and the leading edges of the front fenders were crushed 13 rearward. (Trial Tr. Day 1 AM at 61:24–62:2; Trial Tr. Day 1 PM at 169:25–170:16; 14 Trial Tr. Day 2 at 259:18–260:5; Exhibit 1, Police Photos “Ex. 1”; Exhibit 102, 15 Accident Pictures, “Ex. 102”). 16 77. Ms. Lee was driving the Nissan Sentra and it sustained a T-bone style impact with 17 heavy damage to the right-side and damage to the rear bumper due to contact with 18 the stop sign and utility markers as it traveled off the roadway. (Trial Tr. Day 1 AM 19 at 61:14–22; Trial Tr. Day 1 PM at 170:20–25, 200:4–13; Ex. 1; Ex. 102). 20 21 78. Plaintiff was transported by Gila River Emergency Medical Services to Chandler 22 Regional Medical Center. She was diagnosed with facial lacerations and multiple 23 fractures, including lower vertebral, pelvic and sacral. She underwent surgery with 24 placement of hardware. She also had a right nonoperative scapula fracture. (Trial Tr. 25 Day 1 PM at 125:23–126:6, 128:7–11). 26 79. Plaintiff spent approximately one week in the hospital and two months in a skilled 27 nursing facility while she recovered from her injuries. (Trial Tr. Day 1 PM at 126:15– 28 16, 128:19–21). 1 CONCLUSIONS OF LAW 2 80. Plaintiff brings this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 3 U.S.C. § 2671, et seq. 4 81. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1346(b). Venue is 5 proper in this District pursuant to 28 U.S.C. § 1402(b). 6 82. The FTCA waives the United States’ sovereign immunity “for injury or loss of 7 property . . . caused by the negligent or wrongful act or omission of any employee of 8 the Government while acting within the scope of his office or employment, under 9 circumstances where the United States, if a private person, would be liable to the 10 claimant in accordance with the law of the place where the act or omission occurred.” 11 28 U.S.C. § 1346(b)(1). 12 83. The accident giving rise to this action occurred in Arizona and therefore Arizona 13 substantive law controls. See Richards v. United States, 369 U.S. 1, 8-10 (1962); see 14 Louie v. United States, 776 F.2d 819, 824 (9th Cir. 1985); see 28 U.S.C. § 1346(b)(1). 15 84. To establish a claim for negligence, a plaintiff must prove four elements: (i) a duty 16 requiring the defendant to conform to a certain standard of care; (ii) a breach by the 17 defendant of that standard; (iii) a causal connection between the defendant’s conduct 18 and the resulting injury; and (iv) actual damages. Gipson v. Kasey, 150 P.3d 228, 230 19 (Ariz 2007) (citing Ontiveros v. Borak, 667 P.2d 200, 204 (Ariz. 1983)). 20 85. “Duty is defined as an obligation, recognized by law, which requires the defendant 21 to conform to a particular standard of conduct in order to protect others against 22 unreasonable risks of harm.” Gipson, 150 P.3d at 230 (quotation omitted). 23 86. In Arizona, “a driver having the right of way . . . is still under an obligation to make 24 that degree of observation as a reasonably prudent person would have made under 25 such conditions.” Henderson v. Breesman, 269 P.2d 1059, 1063 (Ariz. 1954); see 26 also Rudolph v. Ariz. B.A.S.S. Fed’n, 898 P.2d 1000, 1003 (Ariz. App. 1995) 27 (“[E]very driver on the public highways owes to all other users of the highways a 28 duty to drive carefully so as not to subject them to unreasonable risks of harm.” 1 (citation omitted)). 2 87. Therefore, a driver traveling on a favored highway with the right-of-way must 3 “keep[] a proper lookout and yield[] the right-of-way, where he can, to another 4 motorist when the favored driver discovers that the other is not going to yield.” Davis 5 v. Weber, 380 P.2d 608, 612 (Ariz. 1963) (citations omitted). 6 88. However, “[t]he purpose of facilitating traffic on favored highways would be 7 completely frustrated if travelers upon them were required to slow down at every 8 intersecting highway.” Nichols v. City of Phoenix, 202 P.2d 201, 205–06 (Ariz. 9 1949); see also Rogers v. Retrum, 825 P.2d 20, 23 (Ariz. Ct. App. 1991) (“A jury 10 will not be permitted to require a party to take a precaution that is clearly 11 unreasonable. . . . Thus, for example, the jury may not require a train to stop before 12 passing over each grade crossing in the country.”) (quotations and citation omitted). 13 89. Thus, “[a] driver of a motor vehicle is not under a duty to anticipate, in the absence 14 of evidence, that other drivers will cross into traffic negligently in violation of the [] 15 law.” Davis, 380 P.2d at 608 (citation omitted). 16 90. Plaintiff failed to meet her burden of showing that there is evidence to support that 17 Mr. Swierski should have anticipated that she would violate traffic laws and not yield 18 him the right of way. 19 91. Mr. Swierski had a duty to keep a proper lookout and yield the right-of-way to Ms. 20 Lee if he discovered that she was not going to yield. See Davis v. Weber, 380 P.2d at 21 612. Mr. Swierski adhered to the speed limit, was attentive to his surroundings, and 22 had no distractions. However, Mr. Swierski could not have anticipated that Ms. Lee 23 would not yield him the right of way. Thus, Mr. Swierski did not breach this duty. 24 Moreover, because Mr. Swierski had no knowledge of an upcoming hazard, Mr. 25 Swierski’s failure to take additional caution by slowing down his vehicle prior to 26 reaching the intersection is also not a breach of duty. See Nichols, 202 P.2d at 205– 27 06 (finding that the defendants were wholly within their rights in assuming that the 28 other driver would stop prior to reaching the intersection). 1 92. The evidence in this case supports that Plaintiff was traveling at least 25 miles per 2 hour straight through the intersection without yielding to oncoming traffic. Because 3 Plaintiff was traveling at this speed without slowing down or yielding, Mr. Swierski 4 did not have enough time to perceive her vehicle and take action to avoid impact. 5 93. Likewise, despite having an unobstructed view of the road, Mr. Swierski did not have 6 enough time to anticipate that Plaintiff would not adhere to traffic laws. See Davis, 7 380 P.2d at 608 (“[S]till there is no evidence whatsoever upon which to predicate an 8 assumption that [the defendant] could have anticipated or foreseen that [the plaintiff] 9 would not or could not stop.”’). 10 Thus, the Court finds that the record sufficiently shows that Mr. Swierski acted 11 prudently and without negligence, and therefore, cannot be held liable for Plaintiff’ s 12 injuries. See Sheehy v. Murphy, 380 P.2d 152, 154 (Ariz. 1963) (“In view of these 13 circumstances the record does not disclose any negligence on the part of the 14 defendant up to the time he first saw the plaintiff.’’). 15 Dated this 22nd day of February, 2024. 16

18 United States District ladge 19 20 21 22 23 24 25 26 27 28