
    Tamera TORRES-MARTINEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 14-15564.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 14, 2016.
    Filed April 27, 2016.
    John Pepper Leader, Esquire, Leader Law Offices, Tucson, AZ, David Lawrence Abney, Esquire, Law Offices of Charles M. Brewer, Ltd., Phoenix, AZ, for Plaintiff-Appellant.
    Angela, Walker Woolridge, Assistant U.S., Office of the U.S/ Attorney, Tucson, AZ, for Defendant-Appellee.
    
      Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit Judges.
   MEMORANDUM

Tamera Torres-Martinez appeals the district court’s judgment awarding Torres-Martinez $40,000 in damages for a January 2009 collision with a United States postal truck that left Torres-Martinez injured. We affirm. Because the parties are familiar with the history of the case, we need not recount it here.

The district court correctly applied Arizona law to conclude that the collision did not cause Torres-Martinez’s continuing subjective complaints of pain. Under Arizona law, the elements of a negligence claim are “the existence of a duty owed, a breach of that duty, and damages causally related to such breach.” Smethers v. Campion, 210 Ariz. 167, 108 P.3d 946, 949 (App.2005) (emphasis added). Thus, Torres-Martinez had the burden to prove that causal relationship by the preponderance standard, and the district court properly applied that standard in determining that certain damages were not caused by the accident. See Godwin v. Farmers Ins. Co. of Am., 129 Ariz. 416, 631 P.2d 571, 573 (App.1981), Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228, 230 (2007).

Torres-Martinez argues that the “reasonable certainty” standard, not the preponderance of evidence standard, should apply. However, the reasonable certainty standard (which, in Arizona at least, requires less proof than the preponderance standard) only applies to the extent of damages awarded, not to the question of damage causation. As the commentary to Restatement (Second) of Torts § 912 (1979), which discusses the “reasonable certainty” test (and which has been favorably cited by Arizona courts, see, e.g., Felder v. Physiotherapy Assocs., 215 Ariz. 154, 158 P.3d 877, 885 (App.2007)) provides:

In all of these cases the recovery of damages for a particular harm is dependent upon proof that the harm occurred as the result of the tortious conduct, and normally the plaintiff can recover damages for the harm only by proving this with the same degree of certainty as that required in proving the existence of the cause of action.

Restatement (Second) of Torts § 912 cmt. a (1979).

The purpose of the “reasonable certainty” test is to relieve the plaintiff of proving damages with absolute certainty, not to relieve the plaintiff of proving causation by a preponderance of the evidence. See id. Thus, the district court correctly applied Arizona law in its causation findings.

The district court did not clearly err in its consideration of expert testimony. The district court assessed and resolved conflicting medical testimony on the question whether the collision caused Torres-Martinez’s continuing complaints of pain. See Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (‘Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     