Civil matters update | Latest news

The Independent has pursued two civil lawsuits and provides an update below.

Mack v. Town of Pinetop Lakeside (and others)

In a 2016 labor lawsuit against the city of Pinetop-Lakeside, Johnny Mack filed his complaint alleging a hostile work environment relating to race, infliction of emotional stress, and three retribution claims against some or all of the defendants. Mack is African American with a Native American wife. It is claimed that he is afraid of snakes – an important point described below. He claims that former director of the city’s public works department, Kenneth Patterson, used racial slurs in Mack’s presence, labeling certain machine repairs as “n-rigged” and “afro-engineered” and calling the natives “dirty Indians” . ”

The case had gone up and down the appellate ladder, but a jury in January 2020 finally ended it with their verdict: “Plaintiff takes nothing. The verdict will be made in favor of the defendant and the lawsuit and lawsuit will be dismissed. ”Announced the dismissal verdict.

The case went to the Ninth District Court of Appeals in San Francisco because the judge mistakenly gave the defendants a “summary judgment” on all counts. Such a judgment is appropriate if no essential facts are disputed and one side is legally entitled to a judgment. The Court of Appeal found that Arizona District Court Judge, Judge Susan Bolton, sentenced the defendants on three of the plaintiff’s lawsuits, but that a jury must hear and rule two of the counts that the judge dismissed. Apparently that happened and, as I said, the jury took the side of the defense.

In addition to the racial slurs, Mack alleged that a Patterson high school buddy, a clerk named David Davis, hid a garter snake in Mack’s street sweeper and told Mack to get a spray bottle from a compartment of the street sweeper, which resulted in Mack unwittingly hiding the Grab the snake. Mack says that while Patterson and Davis were both laughing about it, Mack developed chest pain and had a heart attack, says his cardiologist. At the time, he was 58 years old and in poor health. Mack claims Patterson knew what Davis was up to and didn’t prevent it.

Mack sued, alleging that the city and various combinations of the accused created a hostile work environment in violation of federal law, retaliated against him for reporting the incidents and under Arizona law for deliberately causing emotional distress with the snake incident . The lawsuit did not specify the amount of the damages sought, but Mack’s February 2106 lawsuit to the city (a forerunner of the lawsuit) called for $ 2 million.

In defending the lawsuit, the defendants argued that there was no retaliation for Mack for reporting the incidents; in fact, Patterson was reprimanded and suspended for two weeks for the insults, and Mack had no adverse effect on his employment. The judge agreed, and the appeals court said Bolton was right in giving the defendants a summary judgment, dismissing those three retribution claims.

However, Mack requested and was entitled to jury trial on the other two charges. The appellate court found that there were significant controversial facts regarding the hostile work environment that a jury, not the judge, had to determine.

The appeals court wrote, “Because Patterson used such highly offensive language in the presence of an African American person three times in a year, a reasonable jury could conclude that Mack’s surroundings were objectively and subjectively hostile,” but they removed Davis from that count because he made no racist slurs and there was no evidence of a racist motive in the snake incident.

Also on the emotional level, the court said that “reasonable minds may disagree” on whether the Davis snake incident was a harmless prank or “extreme and outrageous behavior” that would entitle Mack to compensation. But the jury spoke and the defendants won.

Kundson (and others) vs. TLC Supported Services, Inc.

A triple-death crash that occurred near the “Y” east of Show Low in April 2019, suing the families of the deceased and injured at TLC Supported Living Services, Inc. (TLC) and the state of Arizona in January 2020 in the Navajo District Supreme Court.

The terrible crash occurred around 7:46 a.m. on SR 61 at mile post 354.9. Here, authorities say that a white TLC Ford van driven north of Pinetop by TLC agent Craig Jackson, 38, allegedly crossed the center line into the opposite lane and with a southbound vehicle, a silver Dodge Neon, driven by Candy Knudson, 38 from Concho., Collided. Knudson died on the scene; Van driver Jackson died in hospital a few hours later. Aaron Staley, 39, of Snowflake, one of the special needs adults in the van, also died on the scene. The other two van occupants were injured; both suffered broken bones.

According to the Independent’s DPS report, a truck occupant said the truck driver fell asleep. In fact, the van ride to Concho was canceled that morning, but the TLC driver didn’t notice anything, says DPS.

The plaintiffs in their 11-count lawsuit are the Knudsons parents, her husband, and their underage son; Staley’s parents, the injured Patricia Bryant and her parents, and the injured Cara Roberts and her mother. They claim TLC under various theories, mainly negligence or “delict”.

In order to win a lawsuit for tort, the plaintiff must prove four things: that the defendants had a duty of care, that they violated this duty, that the plaintiffs suffered damage and that this damage was caused by a breach of duty by the defendant. But they only need to prove each element with “overwhelming evidence,” a standard of evidence that is far easier to meet than the “without reasonable doubt” standard used in criminal cases. The obesity standard basically means that plaintiffs must demonstrate that it is “more likely than not” that things happened the way plaintiffs say they did.

Regarding TLC, plaintiffs say their driver’s duties are to be found in traffic laws, such as wrong path and controlling a vehicle’s speed to avoid a collision. Further obligations can be found in the criminal law of the plaintiffs, such as not driving lightly, injuring or killing a motor vehicle, not committing negligent homicide or negligent homicide.

The lawsuit alleges that the driver violated all duties that caused significant harm to the plaintiffs, and since TLC employed the driver, TLC is liable for the employee’s actions – a generally accepted element of tort law. Plaintiffs do not state the amount they are asking, but promise to prove it in the process. They did not sue the deceased driver of the delivery truck or his estate.

With regard to TLC itself, plaintiffs allege that TLC had a duty to hire, train and supervise its employees so that employees would act with reasonable care, and that TLC is in breach of that duty, for example by failing to provide adequate guidelines to ban exhausted drivers caused damage as a result. Finally, the plaintiffs are demanding compensation from TLC for “spoilage” because they did not keep the van for inspection when requested.

Plaintiffs also sued the State of Arizona, alleging that the state has a duty to ensure that TLC uses reasonable care at all times in providing these services, since the state has licensed TLC to provide its services, and that the state does so did not do and thus against this duty and caused damage. The state was released from the lawsuit earlier.

Some of the violations alleged by plaintiffs were so outrageous that plaintiffs, they say, are entitled to “punitive damages” to punish defendants for alleged wrongdoing in excess of the actual dollar amount the alleged negligence cost plaintiffs.

On June 19, TLC attorneys filed a notice with Judge Malinda Hardy that the case has been resolved and a signed release agreement would appear shortly. Judge Hardy had scheduled a hearing on the case for August 8, but court records show the hearing has been vacated and no future date has been listed as of now. The terms of the settlement were not included in the notice.

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