Crime & Courts

Eddy's attorneys ask judge to dismiss Arterburn lawsuit accusing dealership of negligence

Officer Brian Arterburn, left, and his wife, Claudale, get ready to greet officers who came out to welcome him home after he returned to Wichita on Nov. 29, 2017, following months of treatment for injuries he received when he was run over last year.
Officer Brian Arterburn, left, and his wife, Claudale, get ready to greet officers who came out to welcome him home after he returned to Wichita on Nov. 29, 2017, following months of treatment for injuries he received when he was run over last year. File photo

Attorneys for Eddy’s Chevrolet Cadillac want a judge to throw out a civil lawsuit accusing the dealership of negligence in connection with the hit-and-run that disabled Wichita police Officer Brian Arterburn.

The suit, filed earlier this year by Claudale Arterburn, accuses the east Wichita dealership of helping to set into motion the events that left her husband needing round-the-clock care and has kept him from returning to work. Her attorneys contend the dealership acted negligently because it failed to report the 2016 Chevy Tahoe that ran over Brian Arterburn on Feb. 7, 2017, as missing for nearly two months.

They've also said in court documents that they have reason to think the SUV wasn't stolen, as the dealership says — rather it was out on loan and the man driving it that day, Justin Terrazas, had permission to drive it.

Eddy's Chevrolet Cadillac filed a written motion asking for the case to be dismissed late last month. The motion contends the dealership is immune from suit because Arterburn was on the job when he was hurt and because the negligence claims aren't actionable under Kansas law.

Eddy’s hasn’t publicly commented on the allegations. The dealership, 8801 E. Kellogg Drive, is owned by Brandon Steven Motors.

Terrazas, 32, is awaiting trial on charges connected to Arterburn's injuries and the police pursuit, including aggravated battery of a law enforcement officer, fleeing police and drug distribution. He also has unrelated drug cases pending, court records show.

The civil suit could be the public's best shot of answering key questions that might not be addressed in the criminal proceedings against Terrazas:

  • Why did Eddy's wait to report the Tahoe — as well as two dealer tags — as stolen until officers called to ask about it on Feb. 7, 2017, when it supposedly went missing from the car lot in December?

  • Was the SUV really stolen, as the car dealership ultimately reported? Or was it out on loan?

  • If it wasn't stolen, how did a purported drug dealer come to have a $66,200 Tahoe with dealer tags in his possession?

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The SUV ran over Brian Arterburn as he was trying to deploy a tire deflation device to stop its flight during a police pursuit. Officers saw the Tahoe parked in the driveway of a south Wichita home they were staking out on Feb. 7, 2017, in their search for another man who was wanted on an attempted burglary charge.

Eddy's reported the SUV and two dealer tags as stolen after officers called and spoke with dealership employees around 11 a.m. that day. The date of theft they gave was Dec. 17, 2016 — nearly two months prior.

About two hours after the call, police started pursuing the Tahoe when Terrazas got into the driver's seat, backed out of the driveway and drove off.

Arterburn and his partner had been in radio communication with officers staking out the house where the SUV had been parked and were trying to head off its driver when Arterburn was run over. Initially police weren't at the south Wichita home looking for the SUV or for Terrazas.

Arterburn is still employed by the Wichita Police Department, agency spokesman Officer Charley Davidson said. But he hasn't yet returned to work. He joined the department in 1992, Davidson said.

Claudale Arterburn is seeking more than $75,000 in damages in the civil case.

Firefighter Rule

The court documents filed by Eddy’s attorneys on April 26 and 27 in Sedgwick County District Court ask that the civil lawsuit be dismissed under what's known as the Firefighter Rule. The rule prevents injured firefighters from recovering damages from the people responsible for creating the hazards that draw emergency responders to a scene in most cases.

Last year, the Kansas Supreme Court extended the rule to law enforcement officers injured on the job, too.

Eddy's attorneys, Brian Boos and Jason Janoski, argued in a memorandum in support of the car lot's motion to dismiss that "it doesn't matter whether police were trying to recover a stolen vehicle or stop Mr. Terrazas from eluding pursuit" when he was hurt.

"The inescapable fact remains that Officer Arterburn was injured while responding to a hazard or condition Eddy's allegedly created," they said in the memorandum.

The dealership is immune from suit, the attorneys also contend, because Kansas courts have long held that, under most circumstances, there is no legal duty to protect a person from third-party injury. And any alleged failure of the dealership to anticipate wrongdoing by a third party doesn't constitute negligence under state law.

The suit "alleges no facts showing Eddy's knew Mr. Terrazas was incapable of operating a motor vehicle with ordinary care, a prerequisite to an actionable claim of negligent entrustment," they argued in the memorandum.

Information sought

Also among court documents filed in Sedgwick County District Court late last month is a list of information sought by Arterburn’s wife from the dealership.

It includes:

  • Whether the dealership knows how and why the Tahoe went missing and how it handled making the report to police.
  • Why the SUV and the dealer tag thefts weren’t reported to Wichita police until Feb. 7, 2017 – even though Eddy's employees told officers they disappeared up to two months earlier.

  • Whether any employees were disciplined or fired over the Tahoe.

  • Any documents or messages that talk about any vehicle or dealer tags being reported stolen or that mention the Chevy Tahoe and who was allowed to drive it.
  • Anything to or from Eddy’s owners Brandon and Rodney Steven or dealership management about the Tahoe and it being missing or stolen.

  • Complete employment files for any Eddy’s employee who handled the Tahoe or its keys.

  • Surveillance footage of the Tahoe entering and leaving the lot.

Eddy’s is asking the court to not have to provide answers to the list unless a judge rejects its motion to dismiss the case.

Providing the information before the dismissal request is handled would "deprive Eddy's of the right to have its claim of immunity resolved at the earliest possible stage in this litigation," Eddy's attorneys said in court documents.

Wichita police Officer Brian Arterburn arrived home to Wichita after having spent months in rehab hospitals in Texas and Colorado. Arterburn was seriously injured in February when a man fleeing police in an SUV ran him over. (Travis Heying/The Wic

Amy Renee Leiker: 316-268-6644, @amyreneeleiker