McCloud v. Kimbro

In McCloud v. Kimbro, 224 Ariz. 121, 228 P.3d 113 (App. 2010), Officer Kimbro was a DPS officer who normally worked in Phoenix, where he lived, but who had been temporarily assigned to Douglas, Arizona, and the surrounding areas, including Sierra Vista. 224 Ariz. at 122,3, 228 P.3d at 114. While there, Officer Kimbro stayed in a local motel. Id. On the day of the accident, Officer Kimbro's work day began at 4:00 a.m. and was to conclude at noon, although he worked some overtime. 224 Ariz. at 122,4, 228 P.3d at 114. Shortly before the accident, he stopped by the Sierra Vista DPS office, where he obtained the name of a local restaurant. Id. He and several members of his unit, including his supervisor, were travelling to the restaurant when the state-owned vehicle he was driving struck Brystal McCloud's vehicle. Id. Although the parties disputed whether Officer Kimbro's work time had ended, the McCloud court concluded that "the exact time his shift ended is not material to determining whether Kimbro was within the scope of his employment" under the court's analysis. 224 Ariz. at 122 n.2,4, 228 P.3d at 114 n.2. McCloud timely filed a notice of claim against the State of Arizona, DPS, and Officer Kimbro, see A.R.S. 12-821.01 (2003), but did not file her lawsuit against them until more than one year after the accident. Id. The trial court granted a motion to dismiss all of the defendants pursuant to Rule 12(b)(6), Ariz. R. Civ. P., because the action had been filed beyond the one-year statute of limitations period applicable to claims against a public entity or employee as set forth in A.R.S. 12-821 (2003). Id. at n.3. The court of appeals affirmed as to the state and DPS, but reversed and remanded as to Officer Kimbro personally because a material fact question existed whether he was acting within the course and scope of his employment at the time of the accident. Id.