Civil cases update | Latest News

The Independent has been following two civil lawsuits and provides an update, below.

Mack v. Town of Pinetop Lakeside (and others)

In a 2016 employment related lawsuit against the Town of Pinetop-Lakeside Johnny Mack filed his complaint alleging a hostile work environment regarding race, infliction of emotional distress and three claims for retaliation by against some or all the defendants. Mack is African American with a Native American wife. It is alleged that he is terrified of snakes — a significant point described below. He claims that the former director of the town’s public works department, Kenneth Patterson, used racial slurs in Mack’s presence such as characterizing certain machinery repairs as having been “n-rigged” and “afro-engineered” and described Natives as “dirty Indians.”

The case had gone up and down the appellate ladder but a jury in January 2020 ended it for good with its verdict: “Plaintiff to take nothing. Judgment is entered in favor of Defendants and the complaint and action are dismissed.” stated the Judgment of Dismissal.

The case went to the Ninth Circuit Court of Appeals in San Fransisco because the judge erroneously granted “summary judgment” to the defendants on all counts. That type of judgement is proper if there are no material facts that are disputed and one side is entitled to judgment as a matter of law. The appeals court found that the trial judge, U.S. District Court of Arizona Judge Susan Bolton was correct to grant judgment to the defendants in three of plaintiff’s claims, but that a jury must hear and decide two of the counts that the judge threw out. Apparently that happened and the jury, as stated, sided with the defense.

Besides the racial slurs, Mack claimed that a high school buddy of Patterson, an employee named David Davis, hid a garter snake in Mack’s street sweeper and told Mack to go get a spray bottle from a compartment of the sweeper, which resulted in Mack unwittingly grabbing the snake. Mack says that while Patterson and Davis were both laughing about it, Mack began having chest pains and suffered a heart attack, says his cardiologist. At the time, he was 58 years old and in poor health. Mack claims that Patterson knew what Davis was planning and didn’t stop it.

Mack sued, alleging that the town and various combinations of the defendants, in violation of federal law, created a hostile work environment, retaliated against him for reporting the incidences, and under Arizona law, for intentionally inflicting emotional distress on him with the snake incident. The suit did not specify an amount of damages sought, but Mack’s February, 2106 Notice Of Claim to the town (a precursor to the lawsuit) asked for $2 million.

In defending the suit, defendants argued that there wasn’t any retaliation for Mack reporting the incidents; in fact, Patterson was reprimanded and got a two week suspension for the slurs, and Mack suffered no adverse effects to his employment. The judge agreed, and the appeals court said Bolton was right when she gave the defendants summary judgment and threw out those three retaliation-related claims.

However, with regard to the other two counts, Mack requested and was entitled to a jury trial. The appeals court found that there were material facts in dispute that a jury, not the judge, had to figure out with regard to the hostile work environment.

The appeals court wrote that “Because Patterson used such severely offensive language in the presence of an African American person three times within one year, a reasonable jury could conclude that Mack’s environment was objectively and subjectively hostile,” but they removed Davis from that count because he didn’t make any racial slurs and there wasn’t evidence of a racial motive with the snake incident.

Likewise, with regard to the emotional distress issue, the court said that “reasonable minds could differ” as to whether the snake incident by Davis was a harmless prank or amounts to “extreme and outrageous conduct,” which would entitle Mack to damages. But the jury spoke and defendants won.

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

A triple fatality crash that occurred near the “Y” east of Show Low in April 2019 and the relatives of the deceased and injured parties sued TLC Supported Living Services, Inc., (TLC) and the State of Arizona in January, 2020 in the Navajo County Superior Court.

The horrific crash occurred around 7:46 a.m. on SR 61 at milepost 354.9. That’s where authorities say that a TLC white Ford van driven northbound by TLC employee Craig Jackson, 38, of Pinetop allegedly crossed the center line into the opposite lane and collided with southbound vehicle, a silver Dodge Neon, driven by Candy Knudson, 38 of Concho. Knudson died at the scene; van driver Jackson died at the hospital a few hours later. Aaron Staley, 39, of Snowflake one of the special-needs adults in the van died at the scene as well. The other two van occupants were injured; both suffered broken bones.

According the DPS report obtained by the Independent, a van occupant said that the van driver had fallen asleep. In fact, the van’s trip to Concho had been cancelled that morning but the TLC driver didn’t get word of that, says DPS.

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

To win a tort claim, the plaintiff must prove four things: That the defendants had a duty of care, breached that duty, that plaintiffs suffered damages and those damages were caused by defendant’s breach of their duty. But they only have to prove each element by “a preponderance of the evidence,” a standard of proof far easier to meet than the “beyond a reasonable doubt” standard seen in criminal cases. The preponderance standard basically means that plaintiffs must show that it’s “more likely than not” that things happened the way plaintiffs say they did.

As to TLC, plaintiffs say that the duties their driver had can be found in traffic laws, such as the duty to obey traffic control devices (like a solid yellow line that means no passing) the duty to change lanes safely, to not drive the wrong way, and to control a vehicle’s speed to avoid a collision. Other duties can be found in the criminal law plaintiffs say, such as to not recklessly drive, cause injury or death by a motor vehicle, to not commit manslaughter or negligent homicide.

The suit claims the driver breached all those duties which caused major damages to the plaintiffs and because TLC employed the driver, TLC is vicariously liable for the employee’s actions — a well-recognized element of tort law. The plaintiffs do not specify an amount they seek, instead pledging to prove them at trial. They did not sue the deceased van driver, or his estate.

As to TLC itself, plaintiffs allege that TLC had a duty to hire, train, and supervise their employees so that employees would act with reasonable care, and by not having sufficient policies prohibiting exhausted drivers for example, TLC breached that duty thus causing damages. Finally, the plaintiffs seek damages against TLC for “spoilation,” because they did not preserve the van for inspection after they were asked to.

Plaintiffs also sued the State of Arizona, alleging that because the state licensed TLC to perform its services, the state had a duty to make sure that TLC act at all times with reasonable care in providing those services, and the state did not, thus breaching that duty and causing damages. The state was dismissed from the suit earlier on.

Some of the breaches alleged by plaintiffs were so egregious that the plaintiffs, they say, are entitled to “punitive damages” to punish defendants for alleged bad acts over and above the actual dollar amount the alleged negligence cost the plaintiffs.

On June 19 lawyers for TLC filed a notice with Judge Malinda Hardy that the case has settled, and a signed stipulation to dismiss would be forthcoming. Judge Hardy had a hearing scheduled for August 8 in the case, but court records show that the hearing was vacated, and as of now, there is no future date listed. The terms of the settlement were not included in the notice.

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