Free Order on Motion for Directed Verdict - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 County of La Paz, et al., 13 Defendants. 14 15 16 vs. James W. Field, Plaintiff,

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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No. CV03-2214-PHX-SRB ORDER

Pending before the Court are the remaining La Paz County Defendants Brad Weekley 17 and Guy Gorman's Motion for Judgment as a Matter of Law and Plaintiff's Motion for New 18 Trial Pursuant to Rule 59(a). Both motions will be denied. 19 Defendants Weekley and Gorman urge that judgment as a matter of law should be 20 granted because Plaintiff failed to present evidence that the electrical conditions on his 21 property did not present a health and safety hazard to the public on October 30, 2002, and 22 because Plaintiff failed to establish that La Paz County had the authority to terminate his 23 electrical service. Plaintiff filed an objection to the motion and an addendum attaching 24 various documents. Defendants Weekley and Gorman have filed a reply. 25 In determining whether defendants are entitled to judgment as a matter of law 26 pursuant to Rule 50, Fed. R.Civ.P., the evidence is reviewed in the light most favorable to 27 the plaintiff and all reasonable inferences must be drawn in favor of plaintiff. See, Reeves 28
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v. Sanderson Plumbing Products, Inc, 530 U.S. 133, 149-50, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The Court will therefore recite the facts presented at trial in a light most favorable to Plaintiff. Plaintiff has owned and operated the Desert Oasis Bargain Center and RV Park in La Paz County for many years. During that time La Paz County officials have been aware that numerous installations on his property were not built or installed in accordance with applicable building, plumbing and electrical codes. Over the years, La Paz County has attempted to require Plaintiff to obtain proper permits for the work he has undertaken mainly on his own but have had a notable lack of success. Plaintiff and La Paz County officials have had periodic encounters about the conditions on his property and the violations of applicable codes and ordinances. Plaintiff had been permitted to continue in business despite La Paz County's knowledge of violations on the property. After a complaint about Plaintiff's property was received, La Paz County officials attempted to inspect his property in September 2002. Plaintiff refused to allow the inspection because he was not shown a copy of the complaint that was lodged against him. La Paz County officials then obtained a search warrant so that they could enter and inspect his property without his consent. The search took place on October 30, 2002. Plaintiff was not present at the time the search commenced but arrived at the property before the search was completed. Plaintiff's long time manager, Tammy Doud, was present and walked with the La Paz County officials as they searched and took photographs of the property. La Paz County officials were present on the property for approximately four hours. Plaintiff was present during the last hour or more of the search but none of the La Paz County officials that were present told him or Ms. Doud anything about the code violations they observed or suggested that they saw anything that presented an imminent danger to health and safety. Among the things that were photographed during the October 30, 2002 search were electrical violations that presented a danger of shock or possible electrocution if individuals were to come in contact with the inside of electrical boxes that were improperly wired. One -2Case 2:03-cv-02214-SRB Document 250 Filed 08/03/2006 Page 2 of 4

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breaker box in particular had copper wires inserted where the fuses should have been. This may have been done because the fuses had been breaking because of electrical problems in the motel room connected to this box. There is no evidence that Plaintiff created or knew of this condition. The copper wires were most likely placed in the box by tenants who were overloading the electrical outlets in the motel room. On November 5 or 6, 2002, Defendant Gorman telephoned APS and advised APS about what had been observed during the search. On November 7, Gorman wrote a letter to APS advising APS that a notice of abatement was going to be posted on Plaintiff's property on November 12, 2002, and asking APS to come out that same day to turn off the electrical power. In the 13 days between the search and the posting of the notice and order of abatement and the termination of the electrical service, no one communicated to Plaintiff about these planned acts. On November 12, 2002, La Paz County officials and APS employees came to Plaintiff's property. La Paz County posted the notice and order of abatement and an APS employee disconnected the power. Plaintiff was present and after the power was cut, Gorman walked the property with Plaintiff and showed him many of the code violations. According to Plaintiff, those conditions that were highlighted at trial as posing the most serious danger were immediately corrected by Plaintiff by disconnecting the service in Gorman's presence. The evidence also showed that within a few days of the power shut off Plaintiff had corrected enough of the deficiencies that La Paz County agreed that temporary power could be restored. In this Court's order of April 27, 2006, it found that the analysis for whether government officials have reasonable grounds for believing there was immediate or imminent danger has both a subjective and an objective prong. The decision maker must both subjectively believe that there is imminent danger and that belief must be reasonable. The evidence at trial was that La Paz County officials could have reasonably believed that the electrical conditions on the property created an imminent danger. Whether they subjectively believed this is a question for the fact finder and not a question to be decided as a matter of law. As the Court has previously noted, the actions of La Paz County officials on and after -3Case 2:03-cv-02214-SRB Document 250 Filed 08/03/2006 Page 3 of 4

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October 30, 2002, could reasonably support a finding that there was no subjective belief of imminent danger. While they had the opportunity to do so on October 30, 2002, no one pointed out the dangers to Plaintiff or to his manager during the four hours of the search of the property. Moreover, La Paz County officials planned with APS for the posting of the notice and order of abatement and the simultaneous discontinuation of electrical service for November 12, 2002, 13 days after allegedly concluding that there was imminent danger. A reasonable finder of fact could conclude that if La Paz County officials truly believed there were imminent dangers to Plaintiff or to his tenants, APS would have been contacted on October 30, 2002, by La Paz County so that APS could assess whether it should immediately terminate electrical service without notice. A reasonable fact finder might also conclude that if lives were in danger, Plaintiff or his manager would have been so advised on October 30, 2002. Plaintiff's Motion for New Trial Pursuant to Rule 59(a) is denied as moot. In light of the denial of the remaining La Paz County Defendants' Motion for Judgment as a Matter Law a new trial will necessarily take place unless the matter is resolved by the parties without the necessity of a second trial. IT IS ORDERED denying Defendants Weekley and Gorman's Motion for Judgment as a Matter Law. (doc. 220). IT IS FURTHER ORDERED denying as moot Plaintiff's Motion for New Trial Pursuant to Rule 59(a). (doc. 244). DATED this 3rd day of August, 2006.

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