Arizona Court of Appeals Division Two holds that, in a vehicular wrongful death or injury case, the fact that the defendant was using a cell phone while driving at the time of the accident may support a claim for punitive damages if, along with evidence of cell phone use, there is other evidence the driver was consciously pursuing a course of conduct knowing that it creates a substantial risk of significant harm to others.

The driver of a garbage truck was speeding and ran a red light, colliding with a passenger car. The driver of the passenger car was killed and her passenger severely injured.  The family of the deceased brought a wrongful-death lawsuit alleging, among other things, punitive damages.  The parties presented competing evidence that the truck driver was using one or both of his phones at the time of the crash.  By the time discovery was commenced, the data on both phones had been deleted.  The parties also disagreed on whether he was speeding more than 30 mph over what he should have been driving, whether he was using cruise control, and whether it was improper for him to be driving with the controls on the righthand side.

The defendants moved for partial summary judgment on the issue of punitive damages.  The trial judge granted the motion, and plaintiffs sought special action with the court of appeals, arguing that the trial judge weighed the evidence and did not view it in the light most favorable to plaintiffs.  The court of appeals accepted jurisdiction.

The court of appeals vacated the trial judge’s grant of the motion for partial summary judgment.  The court reasoned that while cell-phone use while driving, by itself, is insufficient to support an award of punitive damages, an individual using a cell phone while driving may manifest an evil mind for purposes of punitive damages by consciously pursuing a course of conduct knowing that it creates a substantial risk of significant harm to others.  Such circumstances will usually involve a series of events of deliberate bad faith or breaches of duty. 

The court further opined that even if defendants inadvertently failed to preserve data on the cell phones, they should not be rewarded with summary dismissal of the punitive damages based on the absence of that data.

These issues, together with the other disputed evidence in the case, and the truck driver’s previous traffic violations, led the court of appeals to determine that when viewing the facts and reasonable inferences in the light most favorable to plaintiffs, the circumstances constituted a series of events of deliberate bad faith or breach of duty sufficient to avoid summary judgment.

Vice Chief Judge Staring authored the opinion, in which Judges Espinosa and Eppich joined.