AZAPP is a blog that provides a thorough, up-to-date, and efficient resource to stay abreast of significant developments concerning civil cases in Arizona's appellate courts - the two Divisions of the Arizona Court of Appeals and the Arizona Supreme Court.
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Tuesday, November 29, 2005
Article: "Eminent domain showdown nears at Tempe Marketplace".
The Arizona Republic
Nov. 25, 2005 12:00 AM
Tuesday could be a definitive day for property rights in Arizona. That's when the Arizona Supreme Court decides whether to hear City of Tempe vs. Valentine, an eminent domain case involving the Tempe Marketplace.
The Arizona Republic
Nov. 25, 2005 12:00 AM
Tuesday could be a definitive day for property rights in Arizona. That's when the Arizona Supreme Court decides whether to hear City of Tempe vs. Valentine, an eminent domain case involving the Tempe Marketplace.
Posted date: Tue, Nov 29, 2005
Friday, November 18, 2005
Article: "Governor Criticizes Court On Timing Of Redistricting Ruling"
November 16, 2005
Tucson Citizen, PAUL DAVENPORT, The Associated Press
November 16, 2005
Tucson Citizen, PAUL DAVENPORT, The Associated Press
Posted date: Fri, Nov 18, 2005
Thursday, November 10, 2005
Haines v. Goldfield Property Owners Association and Fountain Hills Limited Partnership, 1 CA-CV 04-0652: Division One Reissues Opinion.
This opinion was reviewed by AZAPP on September 19, 2005. The opinion was subsequently removed from the Court’s September list of released cases. The opinion was reissued October 27, 2005. AZAPP found no changes in the opinion which would warrant a revised review.
This opinion was reviewed by AZAPP on September 19, 2005. The opinion was subsequently removed from the Court’s September list of released cases. The opinion was reissued October 27, 2005. AZAPP found no changes in the opinion which would warrant a revised review.
Posted date: Thu, Nov 10, 2005
Wednesday, November 9, 2005
Announcement: A special meeting of the Appellate Practice Section will be held this Thursday, November 10 from 4:00-5:00 p.m. The topic will be “A Discussion of the Proposed Split of the 9th Circuit” presented by guest speakers the Hon. John M. Roll, District of Arizona and the Hon. William C. Canby, Jr., 9th Circuit Court of Appeals.
The meeting will be held at the US District Court – Phoenix, 401 West Washington, Special Proceedings Courtrooms, 2nd Floor and US District Court – Tucson, 405 West Congress Street, Tucson, Special Proceedings Courtrooms, 2nd Floor
Because of the broad interest in this topic, non-members are welcome to attend. Please RSVP by calling Johnetta Dorsey at (602)340-7314.
The meeting will be held at the US District Court – Phoenix, 401 West Washington, Special Proceedings Courtrooms, 2nd Floor and US District Court – Tucson, 405 West Congress Street, Tucson, Special Proceedings Courtrooms, 2nd Floor
Because of the broad interest in this topic, non-members are welcome to attend. Please RSVP by calling Johnetta Dorsey at (602)340-7314.
Friday, November 4, 2005
Tissicino v. Peterson: Division Two Reverses Grant of Summary Judgment in Claim for Negligent Entrustment of Firearm, Finding Genuine Issues of Material Fact as to Who Controlled the Firearm and the Entrustor’s Knowledge of the Entrustee’s Competence.
Timothy, an adult with a mental impairment and an alcohol abuse problem, accidentally shot Zachary with a firearm given to Timothy one week earlier by his mother, Juanita. Zachary’s parents brought a wrongful death action against Juanita, claiming she had negligently entrusted her son with the firearm. Juanita moved for summary judgment, claiming that Timothy—not she—owned the gun at the time of the shooting. Relying on Restatement (Second) of Torts § 390, the trial court granted the motion, finding that there was no issue of fact as to whether Juanita owned the gun and that plaintiffs had presented insufficient facts to demonstrate that Juanita knew or should have known providing a gun to her son posed an unreasonable risk to others. Zachary’s parents appealed.
The court of appeals reversed the lower court on three grounds. First, the court of appeals held that under Restatement § 390, the right to control chattel is the essential element of a negligent entrustment claim, rather than ownership. Based on evidence raise below, the court found genuine issues of material fact as to whether Juanita or Timothy had the right to control the gun. Second, the court held that an entrustor of chattel is required to consider the characteristics of the entrustee in evaluating whether the latter might use the chattel in a manner that would pose an unreasonable risk of physical harm to himself and others. The court found evidence that created an issue of fact as to whether Juanita should have known that an unreasonable risk of harm would be created if she gave her son the firearm. Third, the court rejected Juanita’s argument that her son’s criminal act in recklessly shooting the victim constituted a superseding cause. The court found that a jury could reasonably conclude that the accidental shooting was foreseeable to Juanita, given her awareness that her son was mentally impaired, abused alcohol, and had shot himself accidentally on a previous occasion.
Judge Eckerstrom authored the opinion; Judges Howard and Brammer concurred.
Timothy, an adult with a mental impairment and an alcohol abuse problem, accidentally shot Zachary with a firearm given to Timothy one week earlier by his mother, Juanita. Zachary’s parents brought a wrongful death action against Juanita, claiming she had negligently entrusted her son with the firearm. Juanita moved for summary judgment, claiming that Timothy—not she—owned the gun at the time of the shooting. Relying on Restatement (Second) of Torts § 390, the trial court granted the motion, finding that there was no issue of fact as to whether Juanita owned the gun and that plaintiffs had presented insufficient facts to demonstrate that Juanita knew or should have known providing a gun to her son posed an unreasonable risk to others. Zachary’s parents appealed.
The court of appeals reversed the lower court on three grounds. First, the court of appeals held that under Restatement § 390, the right to control chattel is the essential element of a negligent entrustment claim, rather than ownership. Based on evidence raise below, the court found genuine issues of material fact as to whether Juanita or Timothy had the right to control the gun. Second, the court held that an entrustor of chattel is required to consider the characteristics of the entrustee in evaluating whether the latter might use the chattel in a manner that would pose an unreasonable risk of physical harm to himself and others. The court found evidence that created an issue of fact as to whether Juanita should have known that an unreasonable risk of harm would be created if she gave her son the firearm. Third, the court rejected Juanita’s argument that her son’s criminal act in recklessly shooting the victim constituted a superseding cause. The court found that a jury could reasonably conclude that the accidental shooting was foreseeable to Juanita, given her awareness that her son was mentally impaired, abused alcohol, and had shot himself accidentally on a previous occasion.
Judge Eckerstrom authored the opinion; Judges Howard and Brammer concurred.
Thursday, November 3, 2005
Article: "Retired Court of Appeals Judge Joins Governor's Race"
The Arizona Republic Nov. 2, 2005
Jan Smith Florez, a former teacher and judge from Nogales, officially declared her candidacy for the 2006 gubernatorial race on Tuesday, just weeks after retiring from the Arizona Court of Appeals.
The Arizona Republic Nov. 2, 2005
Jan Smith Florez, a former teacher and judge from Nogales, officially declared her candidacy for the 2006 gubernatorial race on Tuesday, just weeks after retiring from the Arizona Court of Appeals.
Article: "Democrats To Appeal Redistricting Ruling On Legislative Districts"
Associated Press reprinted in the Arizona Republic Nov. 1, 2005
Democrats will appeal an appellate court's ruling to the Arizona Supreme Court which will likely be filed next week. The appeal will ask that the Supreme Court consider the case on an expedited basis.
Associated Press reprinted in the Arizona Republic Nov. 1, 2005
Democrats will appeal an appellate court's ruling to the Arizona Supreme Court which will likely be filed next week. The appeal will ask that the Supreme Court consider the case on an expedited basis.
Jeter v. Mayo Clinic Arizona: Division One Holds That A “Three-Day Old, Eight-Cell Cryopreserved Pre-Embryo” Does Not Qualify As A “Person” Under Arizona’s Wrongful Death Statute, A.R.S. § 12-611, But The Jeters’ Complaint Otherwise States A Claim Against The Mayo Clinic For Negligent Loss Or Destruction Of The Pre-Embryos, Breach Of Fiduciary Duty, And Breach Of A Bailment Contract.
Belinda and William Jeter, husband and wife, entered an agreement with Mayo Clinic to harvest, store, and implant the couples’ fertilized pre-embryos, in order to help them conceive a child. The agreement required Mayo Clinic to cryopreserve (freeze) any unused pre-embryos so that the pre-embryos could be implanted in Mrs. Jeter at a later date. In a transfer from Mayo Clinic to another health clinic, however, Mayo Clinic allegedly lost or destroyed half of the pre-embryos. In the wake of this loss, the Jeters brought four claims against Mayo Clinic: (1) wrongful death caused by Mayo Clinic’s negligence; (2) negligent loss of “irreplaceable” property; (3) breach of fiduciary duty; and (4) breach of bailment contract. The Superior Court granted Mayo Clinic’s motion to dismiss all four claims.
The Arizona Court of Appeals held that, under Arizona’s wrongful death statute, a “pre-embryo” did not qualify as a “person.” A.R.S. § 12-611. Therefore, the Court affirmed the Superior Court’s dismissal of the Jeters’ wrongful death claim against Mayo Clinic. The Court of Appeals purported to limit its holding, however, to three-day-old, eight-celled embryos yet to be implanted in the womb. In reaching its conclusion, the Court primarily relied on the Supreme Court of Arizona’s earlier interpretation of the statute. See Summerfield v. Super. Ct., 144 Ariz. 467, 698 P.2d 712 (1985) (holding that, under Arizona’s wrongful death statute, a fetus must be viable outside the womb in order to be considered a “person”). The Court refused to extend Summerfield’s bright line from viability to “potential viability.” The Court buttressed its conclusion with “general principles of statutory construction, the status of scientific knowledge concerning embryonic development, the ongoing discussion concerning when life begins, the unintended consequences that may result from such a judicial holding and case law from other jurisdictions.”
The Court sided with the Jeters on the remaining claims, however, and reversed the Superior Court’s dismissals. The Court held that the Jeters could assert their claim for negligent loss of the pre-embryos. Although the Court held that Restatement (Second) of Torts § 868 (Interference with Dead Bodies) did not apply, the Court held that Restatement (Second) of Torts § 323 did. It protected against negligent loss of “things” and allowed recovery for physical and economic harm. The Court reserved deciding whether the tort also allowed the recovery of emotional distress damages, but left open the possibility on remand.
With respect to the Jeters’ remaining two claims—breaches of fiduciary duty and bailment contract—the Superior Court had ruled that the medical malpractice act barred the claims. See A.R.S. § 12-561. The Court held that, on this undeveloped record, the Superior Court prematurely applied the statutory bar to the Jeters’ breach of fiduciary duty claim. The statute applied only to the provision of "health-related services,” and it was unclear whether the claim arose from such services.
Finally, the Court held that the medical malpractice act did not bar the Jeters’ remaining claim—breach of bailment contract. The statute required that medical contracts, which arguably included the bailment contract, must be in writing. See A.R.S. § 12-562(C). Contrary to the Superior Court's ruling, the Jeters had produced sufficient evidence of a written agreement requiring Mayo Clinic to safekeep and return the pre-embryos entrusted to it.
In a special concurrence, Judge Timmer agreed with majority’s result on the Jeters’ wrongful death claim, but disagreed with part of its reasoning. Judge Timmer believed that Summerfield entirely controlled the disposition, and this fact rendered “unnecessary” the majority’s “discussion of the debate concerning when life begins.”
Judge Kessler authored the majority opinion, which Judge Hall joined. Judge Timmer filed a special concurrence.
NEWS COVERAGE:
Howard Fischer, Embryo Loss Not Wrongful Death, Ariz. Daily Star, Oct. 28, 2005.
Hilary White, Arizona Court Uses Non-Scientific “Pre-Embryo Term in Ruling Against Couple, Life Site News, Oct. 31, 2005.
Belinda and William Jeter, husband and wife, entered an agreement with Mayo Clinic to harvest, store, and implant the couples’ fertilized pre-embryos, in order to help them conceive a child. The agreement required Mayo Clinic to cryopreserve (freeze) any unused pre-embryos so that the pre-embryos could be implanted in Mrs. Jeter at a later date. In a transfer from Mayo Clinic to another health clinic, however, Mayo Clinic allegedly lost or destroyed half of the pre-embryos. In the wake of this loss, the Jeters brought four claims against Mayo Clinic: (1) wrongful death caused by Mayo Clinic’s negligence; (2) negligent loss of “irreplaceable” property; (3) breach of fiduciary duty; and (4) breach of bailment contract. The Superior Court granted Mayo Clinic’s motion to dismiss all four claims.
The Arizona Court of Appeals held that, under Arizona’s wrongful death statute, a “pre-embryo” did not qualify as a “person.” A.R.S. § 12-611. Therefore, the Court affirmed the Superior Court’s dismissal of the Jeters’ wrongful death claim against Mayo Clinic. The Court of Appeals purported to limit its holding, however, to three-day-old, eight-celled embryos yet to be implanted in the womb. In reaching its conclusion, the Court primarily relied on the Supreme Court of Arizona’s earlier interpretation of the statute. See Summerfield v. Super. Ct., 144 Ariz. 467, 698 P.2d 712 (1985) (holding that, under Arizona’s wrongful death statute, a fetus must be viable outside the womb in order to be considered a “person”). The Court refused to extend Summerfield’s bright line from viability to “potential viability.” The Court buttressed its conclusion with “general principles of statutory construction, the status of scientific knowledge concerning embryonic development, the ongoing discussion concerning when life begins, the unintended consequences that may result from such a judicial holding and case law from other jurisdictions.”
The Court sided with the Jeters on the remaining claims, however, and reversed the Superior Court’s dismissals. The Court held that the Jeters could assert their claim for negligent loss of the pre-embryos. Although the Court held that Restatement (Second) of Torts § 868 (Interference with Dead Bodies) did not apply, the Court held that Restatement (Second) of Torts § 323 did. It protected against negligent loss of “things” and allowed recovery for physical and economic harm. The Court reserved deciding whether the tort also allowed the recovery of emotional distress damages, but left open the possibility on remand.
With respect to the Jeters’ remaining two claims—breaches of fiduciary duty and bailment contract—the Superior Court had ruled that the medical malpractice act barred the claims. See A.R.S. § 12-561. The Court held that, on this undeveloped record, the Superior Court prematurely applied the statutory bar to the Jeters’ breach of fiduciary duty claim. The statute applied only to the provision of "health-related services,” and it was unclear whether the claim arose from such services.
Finally, the Court held that the medical malpractice act did not bar the Jeters’ remaining claim—breach of bailment contract. The statute required that medical contracts, which arguably included the bailment contract, must be in writing. See A.R.S. § 12-562(C). Contrary to the Superior Court's ruling, the Jeters had produced sufficient evidence of a written agreement requiring Mayo Clinic to safekeep and return the pre-embryos entrusted to it.
In a special concurrence, Judge Timmer agreed with majority’s result on the Jeters’ wrongful death claim, but disagreed with part of its reasoning. Judge Timmer believed that Summerfield entirely controlled the disposition, and this fact rendered “unnecessary” the majority’s “discussion of the debate concerning when life begins.”
Judge Kessler authored the majority opinion, which Judge Hall joined. Judge Timmer filed a special concurrence.
NEWS COVERAGE:
Howard Fischer, Embryo Loss Not Wrongful Death, Ariz. Daily Star, Oct. 28, 2005.
Hilary White, Arizona Court Uses Non-Scientific “Pre-Embryo Term in Ruling Against Couple, Life Site News, Oct. 31, 2005.
