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Friday, January 25, 2008
Greenwood v. State (1/22/2008): Division One Holds That Arizona’s Qualified Immunity Statute, A.R.S. § 12-820.02(A)(1), Applies when a Plaintiff Alleges That the State Failed to Properly Maintain and Communicate an Individual’s Criminal History, and Thus Failed to Retain the Individual in Custody
On January 5, 2003, Miguel Angel Tolentino-Ortiz struck Amanda McCormick’s vehicle, killing her and injuring her passenger, Jonny Spear. In January 2002, Tolentino-Ortiz had been arrested in Cochise County. Although Tolentino-Ortiz had a lengthy criminal history, the Cochise County Superior Court placed him on unsupervised probation because it was unaware of his history due to an error in the processing of his fingerprints. In October 2002, Tolentino-Ortiz was arrested again and booked into Maricopa County Jail. Despite the fact that his arrest clearly violated the terms of his probation, jail personnel did not notify the Cochise County Probation Department. Several months later, Tolentino-Ortiz caused the vehicle collision that killed Ms. McCormick and injured Ms. Speer.
Vickie Greenwood, Ms. McCormick’s surviving parent, and Ms. Speer (“Plaintiffs”) filed suit against the State and Sherriff Joe Arpaio (“Defendants”) for negligence, arguing that they had breached a duty to properly maintain and disseminate Tolentino-Ortiz’s criminal history, communicate that history to other law enforcement agencies, or alert the Cochise County Probation Department of the probation violation. Defendants moved for summary judgment and the superior court granted their motions, ruling that they were entitled to qualified immunity under A.R.S. § 12-820.02(A)(1) and that Plaintiffs had offered no evidence of gross negligence. Plaintiffs appealed.
The Arizona Appeals Court affirmed, holding that Defendants were entitled to qualified immunity because Plaintiffs’ claims were covered by A.R.S. § 12-820.02(A)(1), which immunizes a public employee’s “failure to make an arrest or . . . retain an arrested person in custody.” The Court first explained that it narrowly construed immunity provisions, but would not construe an immunity provision so narrowly as to abrogate immunity altogether. Although it acknowledged that Plaintiffs did not explicitly allege that Defendants had failed to arrest or retain Tolentino-Ortiz, the Court found that “the essence of Plaintiffs’ allegations is that if Defendants had properly maintained and communicated Tolentino-Ortiz’s criminal history, he would have been in custody on January 5, 2003.”
In support of its holding, the Court cited Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 826 P.2d 1217 (App. 1991) and Clouse ex rel. Clouse v. State, 199 Ariz. 196, 16 P.3d 757 (2001), cases in which courts applied qualified immunity even though the plaintiffs did not specifically allege a failure to make an arrest or retain an individual in custody. The Court rejected Plaintiffs’ argument that the purpose of the qualified immunity statute is only to protect public employees when they have to make quick judgments whether to arrest or retain a person, and not for the less immediate act of keeping and transmitting records.
Judge Winthrop authored the majority opinion; Presiding Judge Brown and Judge Kessler concurred.
On January 5, 2003, Miguel Angel Tolentino-Ortiz struck Amanda McCormick’s vehicle, killing her and injuring her passenger, Jonny Spear. In January 2002, Tolentino-Ortiz had been arrested in Cochise County. Although Tolentino-Ortiz had a lengthy criminal history, the Cochise County Superior Court placed him on unsupervised probation because it was unaware of his history due to an error in the processing of his fingerprints. In October 2002, Tolentino-Ortiz was arrested again and booked into Maricopa County Jail. Despite the fact that his arrest clearly violated the terms of his probation, jail personnel did not notify the Cochise County Probation Department. Several months later, Tolentino-Ortiz caused the vehicle collision that killed Ms. McCormick and injured Ms. Speer.
Vickie Greenwood, Ms. McCormick’s surviving parent, and Ms. Speer (“Plaintiffs”) filed suit against the State and Sherriff Joe Arpaio (“Defendants”) for negligence, arguing that they had breached a duty to properly maintain and disseminate Tolentino-Ortiz’s criminal history, communicate that history to other law enforcement agencies, or alert the Cochise County Probation Department of the probation violation. Defendants moved for summary judgment and the superior court granted their motions, ruling that they were entitled to qualified immunity under A.R.S. § 12-820.02(A)(1) and that Plaintiffs had offered no evidence of gross negligence. Plaintiffs appealed.
The Arizona Appeals Court affirmed, holding that Defendants were entitled to qualified immunity because Plaintiffs’ claims were covered by A.R.S. § 12-820.02(A)(1), which immunizes a public employee’s “failure to make an arrest or . . . retain an arrested person in custody.” The Court first explained that it narrowly construed immunity provisions, but would not construe an immunity provision so narrowly as to abrogate immunity altogether. Although it acknowledged that Plaintiffs did not explicitly allege that Defendants had failed to arrest or retain Tolentino-Ortiz, the Court found that “the essence of Plaintiffs’ allegations is that if Defendants had properly maintained and communicated Tolentino-Ortiz’s criminal history, he would have been in custody on January 5, 2003.”
In support of its holding, the Court cited Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 826 P.2d 1217 (App. 1991) and Clouse ex rel. Clouse v. State, 199 Ariz. 196, 16 P.3d 757 (2001), cases in which courts applied qualified immunity even though the plaintiffs did not specifically allege a failure to make an arrest or retain an individual in custody. The Court rejected Plaintiffs’ argument that the purpose of the qualified immunity statute is only to protect public employees when they have to make quick judgments whether to arrest or retain a person, and not for the less immediate act of keeping and transmitting records.
Judge Winthrop authored the majority opinion; Presiding Judge Brown and Judge Kessler concurred.
Posted by azapp @ Fri, Jan 25, 2008
Tuesday, January 22, 2008
Davis v. Agua Sierra Resources, LLC (1/15/2008): Arizona Court of Appeals Division One Holds That Owner Conveying Real Property To Another May Reserve For Itself Any Commercial Groundwater Rights Associated With The Property
After a long series of transactions and conveyances detailed in the Opinion, the Merwyn C. Davis Trust (“Davis”) came to own the CF Ranch in Yavapai County. A prior owner of CF Ranch, upon selling CF Ranch, had reserved to itself the commercial water rights in the CF Ranch, and eventually those water rights came to be owned by Agua Sierra. The City of Prescott sought to purchase the water rights from Davis. Recognizing, however, that the reservation of commercial water rights clouded Davis’ ownership of those rights, the City asked Davis to seek to purchase those rights so the City could acquire them.
Unable to negotiate a purchase (or other agreement) from Agua Sierra, Davis sued Agua Sierra seeking a judgment invalidating Agua Sierra’s commercial water rights reservations associated with CF Ranch. Agua Sierra counterclaimed to quiet title in its favor of all commercial water rights associated with CF Ranch. The trial court granted Davis summary judgment, finding that as a matter of law “Arizona does not recognize the reservation of commercial water rights or the right to develop commercial water rights as reserved in the deeds to the property in this case.”
The Arizona Appeals Court vacated the summary judgment award. The Court began by noting the bifurcated system of allocating water rights in Arizona, which differentiates between groundwater (which is not appropriable and may be pumped by the overlying landowner, subject to the doctrine of reasonable use) and surface water (which is subject to the doctrines of prior appropriation and beneficial use). Agua Sierra admitted in oral argument that it made no claim based on appropriable rights (which apply only to surface water), and thus the Court assumed for purposes of its analysis that the reservation of water rights applied only to percolating groundwater and not surface water.
Noting that Davis’ main attack was that Arizona law does not recognize “a water right severed from the land,” the Court cited case law holding that water rights may indeed be severed and transferred apart from the associated real property. A reservation of water rights is a right to use of the water, not an ownership interest in the actual source of the water. This right of use is a property right that must be conveyed by deed. The Court found no authority for the proposition that a right to use water, as an interest in real property, does not fall within the general common law rule that “a grantor has the right to make a reservation of an interest in real property.” The Court added that the legislature is free to limit an owner’s right to sever water rights from the associated real property. For example, the legislature has limited the transferability of some groundwater rights where the appurtenant land is part of an Active Management Area (AMA) as defined by Arizona’s Groundwater Management Act. A.R.S. § 45-401 et seq. However, no such statute applies to real property like the CF Ranch that lies outside an AMA. Finally, the Court rejected Davis’ argument that one who is not currently exercising water rights has no right to exercise those rights in the future.
Presiding Judge Johnsen authored the opinion, with Judges Thompson and Ehrlich concurring.
After a long series of transactions and conveyances detailed in the Opinion, the Merwyn C. Davis Trust (“Davis”) came to own the CF Ranch in Yavapai County. A prior owner of CF Ranch, upon selling CF Ranch, had reserved to itself the commercial water rights in the CF Ranch, and eventually those water rights came to be owned by Agua Sierra. The City of Prescott sought to purchase the water rights from Davis. Recognizing, however, that the reservation of commercial water rights clouded Davis’ ownership of those rights, the City asked Davis to seek to purchase those rights so the City could acquire them.
Unable to negotiate a purchase (or other agreement) from Agua Sierra, Davis sued Agua Sierra seeking a judgment invalidating Agua Sierra’s commercial water rights reservations associated with CF Ranch. Agua Sierra counterclaimed to quiet title in its favor of all commercial water rights associated with CF Ranch. The trial court granted Davis summary judgment, finding that as a matter of law “Arizona does not recognize the reservation of commercial water rights or the right to develop commercial water rights as reserved in the deeds to the property in this case.”
The Arizona Appeals Court vacated the summary judgment award. The Court began by noting the bifurcated system of allocating water rights in Arizona, which differentiates between groundwater (which is not appropriable and may be pumped by the overlying landowner, subject to the doctrine of reasonable use) and surface water (which is subject to the doctrines of prior appropriation and beneficial use). Agua Sierra admitted in oral argument that it made no claim based on appropriable rights (which apply only to surface water), and thus the Court assumed for purposes of its analysis that the reservation of water rights applied only to percolating groundwater and not surface water.
Noting that Davis’ main attack was that Arizona law does not recognize “a water right severed from the land,” the Court cited case law holding that water rights may indeed be severed and transferred apart from the associated real property. A reservation of water rights is a right to use of the water, not an ownership interest in the actual source of the water. This right of use is a property right that must be conveyed by deed. The Court found no authority for the proposition that a right to use water, as an interest in real property, does not fall within the general common law rule that “a grantor has the right to make a reservation of an interest in real property.” The Court added that the legislature is free to limit an owner’s right to sever water rights from the associated real property. For example, the legislature has limited the transferability of some groundwater rights where the appurtenant land is part of an Active Management Area (AMA) as defined by Arizona’s Groundwater Management Act. A.R.S. § 45-401 et seq. However, no such statute applies to real property like the CF Ranch that lies outside an AMA. Finally, the Court rejected Davis’ argument that one who is not currently exercising water rights has no right to exercise those rights in the future.
Presiding Judge Johnsen authored the opinion, with Judges Thompson and Ehrlich concurring.
Posted by azapp @ Tue, Jan 22, 2008
Tuesday, January 15, 2008
Cundiff v. State Farm Mutual Automobile Insurance Co. (1/10/2008): Arizona Supreme Court Holds That An Insurer May Not Reduce Underinsured Motorist Coverage Based on the Insured’s Receipt of Workers’ Compensation Benefits.
Jean Cundiff, a Pima County Deputy Sheriff, was struck in her patrol car by another vehicle during the course of her employment. Cundiff sued the driver of the other vehicle and settled for the driver’s policy limit, $15,000. Cundiff then made an Underinsured Motorist (“UIM”) claim under her personal motor vehicle liability insurance policy which had a limit of $25,0000. An arbitrator determined Cundiff’s damages totaled $40,000, and neither side appealed.
Meanwhile, the State Compensation Fund provided Ms. Cundiff with approximately $30,000 in workers’ compensation benefits. Based on an offset provision in her policy, State Farm sought to reduce the UIM benefits it paid to Ms. Cundiff by the amount of her worker compensation benefits. Cundiff filed suit claiming, inter alia that the offset provision was unenforceable per se because it violates the Uninsured Motorist Act (“UMA”) as well as the common law collateral source rule. The trial court held that the offset provision was enforceable, and Ms. Cundiff appealed. The Court of Appeals affirmed the trial court, and Ms. Cundiff timely filed a petition for review.
The Supreme Court vacated the Court of Appeals opinion and reversed the trial court’s judgment. Justice McGregor, writing for a unanimous court, held that the language of the UMA is clear and unambiguous in defining the scope of underinsured motorist coverage to be provided by insurers as the difference between one’s total damages for bodily injury or death and the total limits of applicable liability insurance policies. Under the statute, only the “total applicable liability limits” may be deducted from UIM benefits. Worker’s compensation, while a form of casualty insurance is not a form of liability insurance, and thus cannot be considered in determining the amount of UIM coverage available to an insured. Because it held the setoff provision unenforceable per se, the Court declined to reach the issue of the application of the collateral source rule. The Court also declined State Farm’s invitation to apply its decision prospectively only.
Chief Justice McGregor authored the unanimous opinion.
Jean Cundiff, a Pima County Deputy Sheriff, was struck in her patrol car by another vehicle during the course of her employment. Cundiff sued the driver of the other vehicle and settled for the driver’s policy limit, $15,000. Cundiff then made an Underinsured Motorist (“UIM”) claim under her personal motor vehicle liability insurance policy which had a limit of $25,0000. An arbitrator determined Cundiff’s damages totaled $40,000, and neither side appealed.
Meanwhile, the State Compensation Fund provided Ms. Cundiff with approximately $30,000 in workers’ compensation benefits. Based on an offset provision in her policy, State Farm sought to reduce the UIM benefits it paid to Ms. Cundiff by the amount of her worker compensation benefits. Cundiff filed suit claiming, inter alia that the offset provision was unenforceable per se because it violates the Uninsured Motorist Act (“UMA”) as well as the common law collateral source rule. The trial court held that the offset provision was enforceable, and Ms. Cundiff appealed. The Court of Appeals affirmed the trial court, and Ms. Cundiff timely filed a petition for review.
The Supreme Court vacated the Court of Appeals opinion and reversed the trial court’s judgment. Justice McGregor, writing for a unanimous court, held that the language of the UMA is clear and unambiguous in defining the scope of underinsured motorist coverage to be provided by insurers as the difference between one’s total damages for bodily injury or death and the total limits of applicable liability insurance policies. Under the statute, only the “total applicable liability limits” may be deducted from UIM benefits. Worker’s compensation, while a form of casualty insurance is not a form of liability insurance, and thus cannot be considered in determining the amount of UIM coverage available to an insured. Because it held the setoff provision unenforceable per se, the Court declined to reach the issue of the application of the collateral source rule. The Court also declined State Farm’s invitation to apply its decision prospectively only.
Chief Justice McGregor authored the unanimous opinion.
Posted by azapp @ Tue, Jan 15, 2008
National Bank of Arizona v. Thruston (1/10/2008): Arizona Court of Appeals Division One Holds That When a Party Moves for Summary Judgment, It Does Not have to Present Evidence Negating the Non-Moving Party’s Affirmative Defenses to Meet Its Initial Burden of Production, But It Must At Least “Point Out” to the Trial Court, by Reference to Relevant Evidentiary Materials, That the Non-Moving Party has no Evidence to Support Its Affirmative Defenses.
In 2001, the National Bank of Arizona (“the Bank”) made a residential construction loan to Morgen Thruston (“Thruston”). The Bank secured the loan with a deed of trust on the property and required that construction be completed by September 30, 2003. On April 13, 2005, the Bank notified Thruston that she was in default under the terms of the construction loan for failure to complete construction by the deadline and failure to timely pay real estate taxes and homeowner’s association assessments. Initially, the Bank recorded a notice of trustee’s sale but later canceled the sale after Thruston “reinstated” the construction loan. Then, on September 12, 2005, the Bank again notified Thruston that she was in default of the terms of the construction loan. Thereafter, the Bank sued Thruston to judicially foreclose the property. Thruston answered and asserted five affirmative defenses. The Bank then moved for summary judgment because it was undisputed that Thruston had failed to timely complete construction and to pay homeowner’s association assessments. Thruston argued that the court should not grant summary judgment because the Bank failed to present competent evidence to negate Thruston’s affirmative defenses. The trial court disagreed and granted summary judgment to the Bank. This appeal followed.
The Arizona Appeals Court began with a helpful explanation of the standard for summary judgment under Rule 56. Initially, the moving party must produce evidence demonstrating the absence of a genuine issue of material fact (the burden of production) and must explain why it is entitled to summary judgment (the burden of persuasion). What a moving party must do in order to discharge its burden of production depends on whether the moving party bears the ultimate burden of proof at trial. Where the moving party will not bear the ultimate burden of proof at trial, the moving party need only point out by reference to discovery materials that the non-moving party is missing evidence needed to support an essential element of its claim or defense. If the moving party is successful in discharging its initial burden of production, the non-moving party must produce sufficient evidence to create a genuine issue of material fact for trial. In this case, while the Bank did point out that the evidence indisputably established a prima facie case of breach of contract and forelosure, the Bank failed to “point out” that Thruston possessed no evidence to support her affirmative defenses and thus the Bank failed to satisfy its burden of production. Finally, the court explained that a trustor must cure all defaults, both monetary and non-monetary, in order to achieve reinstatement pursuant to A.R.S. § 33-813. In the end, the Arizona Court of Appeals reversed and remanded to the trial court.
Judge Norris authored the opinion; Judges Irvine and Gemmill concurred.
PRACTICE NOTE: This case nicely summarizes the existing standards governing summary judgment, and serves as a reminder concerning several important points for civil practitioners, including that (1) obtaining judgment as a matter of law does not merely require proof establishing the elements of a claim, but rather also a showing that the opposing party is not entitled to the protection of an affirmative defense, (2) Rule 11’s sanction provisions, as noted in the Opinion, apply in the summary judgment context, (3) that summary judgment is not appropriate until the non-moving party has had a sufficient opportunity for discovery, and (4) summary judgment briefing requires calling the court’s attention with record citations to the specific evidence that supports or defeats the summary judgment motion.
In 2001, the National Bank of Arizona (“the Bank”) made a residential construction loan to Morgen Thruston (“Thruston”). The Bank secured the loan with a deed of trust on the property and required that construction be completed by September 30, 2003. On April 13, 2005, the Bank notified Thruston that she was in default under the terms of the construction loan for failure to complete construction by the deadline and failure to timely pay real estate taxes and homeowner’s association assessments. Initially, the Bank recorded a notice of trustee’s sale but later canceled the sale after Thruston “reinstated” the construction loan. Then, on September 12, 2005, the Bank again notified Thruston that she was in default of the terms of the construction loan. Thereafter, the Bank sued Thruston to judicially foreclose the property. Thruston answered and asserted five affirmative defenses. The Bank then moved for summary judgment because it was undisputed that Thruston had failed to timely complete construction and to pay homeowner’s association assessments. Thruston argued that the court should not grant summary judgment because the Bank failed to present competent evidence to negate Thruston’s affirmative defenses. The trial court disagreed and granted summary judgment to the Bank. This appeal followed.
The Arizona Appeals Court began with a helpful explanation of the standard for summary judgment under Rule 56. Initially, the moving party must produce evidence demonstrating the absence of a genuine issue of material fact (the burden of production) and must explain why it is entitled to summary judgment (the burden of persuasion). What a moving party must do in order to discharge its burden of production depends on whether the moving party bears the ultimate burden of proof at trial. Where the moving party will not bear the ultimate burden of proof at trial, the moving party need only point out by reference to discovery materials that the non-moving party is missing evidence needed to support an essential element of its claim or defense. If the moving party is successful in discharging its initial burden of production, the non-moving party must produce sufficient evidence to create a genuine issue of material fact for trial. In this case, while the Bank did point out that the evidence indisputably established a prima facie case of breach of contract and forelosure, the Bank failed to “point out” that Thruston possessed no evidence to support her affirmative defenses and thus the Bank failed to satisfy its burden of production. Finally, the court explained that a trustor must cure all defaults, both monetary and non-monetary, in order to achieve reinstatement pursuant to A.R.S. § 33-813. In the end, the Arizona Court of Appeals reversed and remanded to the trial court.
Judge Norris authored the opinion; Judges Irvine and Gemmill concurred.
PRACTICE NOTE: This case nicely summarizes the existing standards governing summary judgment, and serves as a reminder concerning several important points for civil practitioners, including that (1) obtaining judgment as a matter of law does not merely require proof establishing the elements of a claim, but rather also a showing that the opposing party is not entitled to the protection of an affirmative defense, (2) Rule 11’s sanction provisions, as noted in the Opinion, apply in the summary judgment context, (3) that summary judgment is not appropriate until the non-moving party has had a sufficient opportunity for discovery, and (4) summary judgment briefing requires calling the court’s attention with record citations to the specific evidence that supports or defeats the summary judgment motion.
Posted by azapp @ Tue, Jan 15, 2008
D. Jere’ Webb v. Gittlen et al (1/10/2008): Arizona Supreme Court Holds That Insureds May Assign Claims For Professional Negligence Against Their Insurance Agent To Third Parties.
After purchasing a liquor store, the insureds obtained a business and umbrella policy from their insurance agent. The agent allegedly failed to advise them that they could also purchase liquor liability coverage. The store sold beer to a minor who gave it to a second minor who crashed his vehicle, killing his passenger. The father of the deceased sued the store and the insureds for wrongful death. The insurer refused to defend the suit because not liquor liability coverage was in place. To settle the case, the insureds stipulated to a judgment, which Plaintiff agreed not to execute in exchange for an assignment of the insureds’ right to sue their insurer and insurance agent. Plaintiff sued both for negligence and breach of fiduciary duty. The trial court dismissed the claims, citing Premium Cigars International Ltd. v. Farmer-Butler-Leavitt Insurance Agency for the proposition that professional negligence claims against an insurance agent were non-assignable. The Court of Appeals affirmed. This appeal followed.
The Supreme Court reversed and remanded, holding that claims for professional negligence against insurance agents are assignable. The Court rejected the reasoning used in Premium Cigars, where the court of appeals held a claim for professional negligence against an insurance agent un-assignable because it resembles a legal malpractice claim, which cannot be assigned. Discussing the numerous differences between the attorney-client relationship and the insurance agent-insured relationship (as well as general principles governing the assignability of claims), the Court found the comparison made in Premium Cigars unjustified. The Court went on to reject the insurance agent’s public policy arguments for holding such claims un-assignable.
Justice Bales wrote the opinion for the unanimous Court. .
After purchasing a liquor store, the insureds obtained a business and umbrella policy from their insurance agent. The agent allegedly failed to advise them that they could also purchase liquor liability coverage. The store sold beer to a minor who gave it to a second minor who crashed his vehicle, killing his passenger. The father of the deceased sued the store and the insureds for wrongful death. The insurer refused to defend the suit because not liquor liability coverage was in place. To settle the case, the insureds stipulated to a judgment, which Plaintiff agreed not to execute in exchange for an assignment of the insureds’ right to sue their insurer and insurance agent. Plaintiff sued both for negligence and breach of fiduciary duty. The trial court dismissed the claims, citing Premium Cigars International Ltd. v. Farmer-Butler-Leavitt Insurance Agency for the proposition that professional negligence claims against an insurance agent were non-assignable. The Court of Appeals affirmed. This appeal followed.
The Supreme Court reversed and remanded, holding that claims for professional negligence against insurance agents are assignable. The Court rejected the reasoning used in Premium Cigars, where the court of appeals held a claim for professional negligence against an insurance agent un-assignable because it resembles a legal malpractice claim, which cannot be assigned. Discussing the numerous differences between the attorney-client relationship and the insurance agent-insured relationship (as well as general principles governing the assignability of claims), the Court found the comparison made in Premium Cigars unjustified. The Court went on to reject the insurance agent’s public policy arguments for holding such claims un-assignable.
Justice Bales wrote the opinion for the unanimous Court. .
Posted by azapp @ Tue, Jan 15, 2008
Monday, January 14, 2008
Dube v. Desai (1/11/2008): Arizona Court of Appeals Division Two Holds that A University Professor Acts Within the Scope of His Employment If His Acts Were Incidental to His Work for the University Even if His Motive for Acting was Personal.
Chandra Desai served as doctoral, research and academic advisor and professor to Manu Dube, a University of Arizona graduate student. While a graduate student, Dube also performed contract work for Desai and his company, C. Desai, Inc. In the context of his employment with the company, Dube detected problems with a program developed by Desai and licensed to the company. When Desai rejected Dube’s proposed solutions, Dube focused his dissertation on undermining Desai’s program. Desai subsequently submitted negative comments on Dube’s prior employment, behavior, and dissertation to the committee considering Dube’s doctoral candidacy and accused Dube of plagiarism. Dube sued Desai for tortious interference with business relationships and expectancies.
The trial court granted summary judgment to Desai based on Dube’s failure to comply with the notice-of-claim statute, A.R.S. § 12-821.01, which requires that claims against public employees acting within the scope of employment first be filed with a representative of the entity within one hundred eight days after the cause of action accrues.
The Arizona Appeals Court affirmed, rejecting Dube’s claim that because Desai’s comments to the committee were motivated, in part, to protect Desai’s company, Desai was not acting in the course and scope of his employment. Actions incidental to Desai’s work for the University – including commenting on the viability of Dube’s candidacy for a doctoral degree – were within the authorized scope of Desai’s employment even if they also had the effect of benefiting Desai’s private company.
Presiding Judge Howard authored the opinion, with Chief Judge Pelander and Judge Brammer concurring.
Chandra Desai served as doctoral, research and academic advisor and professor to Manu Dube, a University of Arizona graduate student. While a graduate student, Dube also performed contract work for Desai and his company, C. Desai, Inc. In the context of his employment with the company, Dube detected problems with a program developed by Desai and licensed to the company. When Desai rejected Dube’s proposed solutions, Dube focused his dissertation on undermining Desai’s program. Desai subsequently submitted negative comments on Dube’s prior employment, behavior, and dissertation to the committee considering Dube’s doctoral candidacy and accused Dube of plagiarism. Dube sued Desai for tortious interference with business relationships and expectancies.
The trial court granted summary judgment to Desai based on Dube’s failure to comply with the notice-of-claim statute, A.R.S. § 12-821.01, which requires that claims against public employees acting within the scope of employment first be filed with a representative of the entity within one hundred eight days after the cause of action accrues.
The Arizona Appeals Court affirmed, rejecting Dube’s claim that because Desai’s comments to the committee were motivated, in part, to protect Desai’s company, Desai was not acting in the course and scope of his employment. Actions incidental to Desai’s work for the University – including commenting on the viability of Dube’s candidacy for a doctoral degree – were within the authorized scope of Desai’s employment even if they also had the effect of benefiting Desai’s private company.
Presiding Judge Howard authored the opinion, with Chief Judge Pelander and Judge Brammer concurring.
Posted by azapp @ Mon, Jan 14, 2008
Friday, January 11, 2008
Upcoming Event: Chief Justice Ruth McGregor to Speak on the "State of the Courts"
Arizona Supreme Court Chief Justice Ruth McGregor will address the "State of the Courts" at the upcoming Arizona Appellate Practice Section meeting. The meeting will be held on Thursday, January 17, 2007 at 4 p.m. at the Arizona Supreme Court Building (1500 W. Washington) in Conference Room 345A.
Arizona Supreme Court Chief Justice Ruth McGregor will address the "State of the Courts" at the upcoming Arizona Appellate Practice Section meeting. The meeting will be held on Thursday, January 17, 2007 at 4 p.m. at the Arizona Supreme Court Building (1500 W. Washington) in Conference Room 345A.
Posted by azapp @ Fri, Jan 11, 2008
Thursday, January 10, 2008
Arizona Supreme Court Minutes
The Arizona Supreme Court granted review in the following three cases:
1. STATE OF ARIZONA v PATRICIA A BARNES
2. JAMES L LEE et al v STATE OF ARIZONA
3. GILBERT PROSECUTOR v HON. DOWNIE/MATYKIEWICZ
The Arizona Supreme Court granted review in the following three cases:
1. STATE OF ARIZONA v PATRICIA A BARNES
2. JAMES L LEE et al v STATE OF ARIZONA
3. GILBERT PROSECUTOR v HON. DOWNIE/MATYKIEWICZ
Posted by azapp @ Thu, Jan 10, 2008
Tuesday, January 8, 2008
Powers v. Taser Int’l, Inc. (12/31/2007): Arizona Court of Appeals Division One Holds that “Hindsight Rule” Does Not Apply to Products Liability Claim of Defective Warning
Plaintiff was a deputy sheriff who suffered a back injury allegedly caused by his being struck by an energy weapon during a training exercise. He sued the company that made the weapon for failure to warn of the potential risk of injury. The trial judge refused to give a “hindsight rule” jury instruction and instead informed the jury that the Defendant could be found liable for failure to warn only of risks that were known or knowable in light of the prevailing scientific knowledge at the time of the products’ distribution. The jury ruled for the Defendant and the trial court denied Plaintiff’s motion for a new trial. The court also awarded sanctions under Rule 68(d) because the Defendant had made a formal Offer of Judgment, rejected by the Plaintiff, which was more favorable to Plaintiff than the outcome at trial.
On appeal, Plaintiff argued that the trial court erred by failing to instruct the jury to evaluate the need for a warning based on the hindsight current knowledge of potential risks. The Court of Appeals rejected the argument, finding that the Arizona Supreme Court in Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 247 n.2 (1985) had expressly declined to decide whether the “hindsight rule” applied to products liability cases based on an alleged defective warning. The Court of Appeals adopted the majority view, reflected also in the Restatement (Third) of Torts: Products Liability §2, in rejecting the hindsight rule for a defective warning claim. The Court also upheld the sanctions against Plaintiff, ruling that Defendant’s Rule 68(d) Offer of Judgment was enforceable even though it was conditioned on Plaintiff’s acceptance of maintaining its terms confidential.
Judge Barker wrote the opinion; Judges Timmer and Ehrlich concurred.
Plaintiff was a deputy sheriff who suffered a back injury allegedly caused by his being struck by an energy weapon during a training exercise. He sued the company that made the weapon for failure to warn of the potential risk of injury. The trial judge refused to give a “hindsight rule” jury instruction and instead informed the jury that the Defendant could be found liable for failure to warn only of risks that were known or knowable in light of the prevailing scientific knowledge at the time of the products’ distribution. The jury ruled for the Defendant and the trial court denied Plaintiff’s motion for a new trial. The court also awarded sanctions under Rule 68(d) because the Defendant had made a formal Offer of Judgment, rejected by the Plaintiff, which was more favorable to Plaintiff than the outcome at trial.
On appeal, Plaintiff argued that the trial court erred by failing to instruct the jury to evaluate the need for a warning based on the hindsight current knowledge of potential risks. The Court of Appeals rejected the argument, finding that the Arizona Supreme Court in Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 247 n.2 (1985) had expressly declined to decide whether the “hindsight rule” applied to products liability cases based on an alleged defective warning. The Court of Appeals adopted the majority view, reflected also in the Restatement (Third) of Torts: Products Liability §2, in rejecting the hindsight rule for a defective warning claim. The Court also upheld the sanctions against Plaintiff, ruling that Defendant’s Rule 68(d) Offer of Judgment was enforceable even though it was conditioned on Plaintiff’s acceptance of maintaining its terms confidential.
Judge Barker wrote the opinion; Judges Timmer and Ehrlich concurred.
Posted by azapp @ Tue, Jan 8, 2008
Thursday, January 3, 2008
Maxfield v. Martin (12/27/07): Arizona Court of Appeals Division One Holds Escrow Agent Has a Fiduciary Duty to Confirm the Identity of an Individual Listed as a Party to the Escrow Agreement.
Plaintiff sued Defendant, the title company that acted as the escrow agent in a fraudulent loan transaction secured by a deed of trust on Plaintiff’s property without her knowledge. Defendant moved for summary judgment on the grounds that, as a matter of law, Defendant owed no fiduciary duty to Plaintiff because, as she alleged, she had not actually been a party to the action. Explaining that an escrow’s fiduciary duties extend only to the parties to the escrow agreement, the trial court granted the motion and denied Plaintiff’s motion to amend the complaint to add a negligence claim against Defendant because the court had already determined Defendant owed Plaintiff no duty. This appeal followed.
The Arizona Appeals Court reversed and remanded. The Court noted that an escrow agent has a fiduciary relationship of trust and confidence to the parties to the escrow. The Court held that in the context of a fraudulent loan where an individual’s home is used to secure a mortgage without that individual’s knowledge (and the escrow instructions identify that individual by name such that recording the deed of trust has the potential to directly harm the named individual), the escrow company owes fiduciary duties to the party named in the transaction even when the named individual is unaware of the transaction. A title company acting as an escrow agent should, pursuant to its duty of diligence, confirm the identity of the named individual.
Judge Thompson authored the opinion; Judges Norris and Barker concurred.
Plaintiff sued Defendant, the title company that acted as the escrow agent in a fraudulent loan transaction secured by a deed of trust on Plaintiff’s property without her knowledge. Defendant moved for summary judgment on the grounds that, as a matter of law, Defendant owed no fiduciary duty to Plaintiff because, as she alleged, she had not actually been a party to the action. Explaining that an escrow’s fiduciary duties extend only to the parties to the escrow agreement, the trial court granted the motion and denied Plaintiff’s motion to amend the complaint to add a negligence claim against Defendant because the court had already determined Defendant owed Plaintiff no duty. This appeal followed.
The Arizona Appeals Court reversed and remanded. The Court noted that an escrow agent has a fiduciary relationship of trust and confidence to the parties to the escrow. The Court held that in the context of a fraudulent loan where an individual’s home is used to secure a mortgage without that individual’s knowledge (and the escrow instructions identify that individual by name such that recording the deed of trust has the potential to directly harm the named individual), the escrow company owes fiduciary duties to the party named in the transaction even when the named individual is unaware of the transaction. A title company acting as an escrow agent should, pursuant to its duty of diligence, confirm the identity of the named individual.
Judge Thompson authored the opinion; Judges Norris and Barker concurred.
Posted by azapp @ Thu, Jan 3, 2008
Wednesday, January 2, 2008
Sensing v. Harris (12/20/2007): Arizona Court Of Appeals Division One Holds That Mandamus Relief Is not Appropriate to Order the Phoenix Chief of Police to Enforce a City Ordinance.
Roger Sensing (“Sensing”), a Phoenix business owner, sought a writ of mandamus ordering City of Phoenix Police Chief Jack F. Harris (“Chief”) to enforce a city ordinance prohibiting solicitation on city streets. Mr. Sensing alleged that for a number of years people have been standing adjacent to the streets next to his business soliciting occupants of vehicles in violation of a Phoenix city ordinance. Despite numerous requests by Mr. Sensing that the City of Phoenix Police Department enforce the ordinance, the Department refused to do so. As a result, Mr. Sensing filed a verified complaint seeking judicial intervention in the form of a writ of mandamus ordering the Chief to enforce the ordinance. The superior court dismissed the complaint, and Mr. Sensing timely appealed.
The Arizona Appeals Court affirmed the superior court’s dismissal. The Court first noted that mandamus is an extraordinary remedy that can only be employed to compel a public official to perform non-discretionary acts or to act properly where the official has abused his discretion. Because law enforcement activities by police and prosecutors are generally considered to be discretionary, they are not appropriate for mandamus relief. The Court rejected Mr. Sensing’s argument that enforcement of the city ordinance is mandated by Phoenix City Code § 2-119 which states “There shall be a Police Department, headed by a Chief of Police. He shall be responsible for the enforcement of State laws and city ordinances.” While this code section gives the Chief a general duty to enforce city ordinances, it leaves him discretion to choose what, if any, enforcement actions will be taken. The Court cited the United States Supreme Court’s opinion in Town of Castle rock, Colorado v. Gonzales, 545 U.S. 748 (2005) in support of its holding. Finally, the Court found that Mr. Sensing had alleged no facts showing the Chief had abused his enforcement discretion.
Presiding Judge Irvine authored the opinion; Judge Weisberg and Judge Norris concurred.
Roger Sensing (“Sensing”), a Phoenix business owner, sought a writ of mandamus ordering City of Phoenix Police Chief Jack F. Harris (“Chief”) to enforce a city ordinance prohibiting solicitation on city streets. Mr. Sensing alleged that for a number of years people have been standing adjacent to the streets next to his business soliciting occupants of vehicles in violation of a Phoenix city ordinance. Despite numerous requests by Mr. Sensing that the City of Phoenix Police Department enforce the ordinance, the Department refused to do so. As a result, Mr. Sensing filed a verified complaint seeking judicial intervention in the form of a writ of mandamus ordering the Chief to enforce the ordinance. The superior court dismissed the complaint, and Mr. Sensing timely appealed.
The Arizona Appeals Court affirmed the superior court’s dismissal. The Court first noted that mandamus is an extraordinary remedy that can only be employed to compel a public official to perform non-discretionary acts or to act properly where the official has abused his discretion. Because law enforcement activities by police and prosecutors are generally considered to be discretionary, they are not appropriate for mandamus relief. The Court rejected Mr. Sensing’s argument that enforcement of the city ordinance is mandated by Phoenix City Code § 2-119 which states “There shall be a Police Department, headed by a Chief of Police. He shall be responsible for the enforcement of State laws and city ordinances.” While this code section gives the Chief a general duty to enforce city ordinances, it leaves him discretion to choose what, if any, enforcement actions will be taken. The Court cited the United States Supreme Court’s opinion in Town of Castle rock, Colorado v. Gonzales, 545 U.S. 748 (2005) in support of its holding. Finally, the Court found that Mr. Sensing had alleged no facts showing the Chief had abused his enforcement discretion.
Presiding Judge Irvine authored the opinion; Judge Weisberg and Judge Norris concurred.
Posted by azapp @ Wed, Jan 2, 2008
Bentley v. Building Our Future (12/20/2007): Arizona Court of Appeals Division One Construes the “Same Subject” Exemption to Political Committee Advertising Under A.R.S. § 16-912.01, and Holds That Advertisements Supporting Multiple Bond Propositions Were Not “More Than Fifty Percent Devoted to . . . the Same Subject.”
Under A.R.S. § 16-912.01(A), a political committee must disclose its four largest funding sources in connection with ballot proposition advertising. Building Our Future (“BOF”) printed advertisements supporting the seven ballot propositions at issue in a 2006 City of Phoenix special bond election, but did not identify its four major funding sources on its advertisements. Linda Bentley and G. Russel Childress (“Bentley”) sued BOF, alleging a violation of A.R.S. § 16-912.01(A). BOF contended that § 16-912.01(H) exempted it from the otherwise applicable disclosure requirements because the advertisements were not “more than fifty percent devoted to one or more ballot propositions or proposed measures on the same subject.” (Emphasis added). The superior court defined “same subject’ to include overlapping and interdependent ballot propositions “which are closely related and which further the same purposes,” and found that under this definition, BOF’s advertisements were subject to the disclosure requirements. BOF appealed.
The Arizona Appeals Court vacated the superior court’s ruling, holding that the bond propositions did not deal with the same subject. The Court reasoned that the common use of the term “same” means “identical,” rather than “closely related,” and that the bond propositions did not relate to identical subject matter. The court also looked to the standard used in analyzing proposed amendments under Article 21, § 1 of the Arizona Constitution and the Single Amendment Rule, to find support for its narrow definition of “same subject.” Finally, the court cited case law specific to bond elections, noting that under these cases, the several parts of a proposed bond measure must have a natural relationship. The bond propositions at issue in the advertisement failed to meet any of these standards, precluding the application of the disclosure provisions to the advertisements.
Judge Kessler authored the opinion; Judges Brown and Winthrop concurred.
Under A.R.S. § 16-912.01(A), a political committee must disclose its four largest funding sources in connection with ballot proposition advertising. Building Our Future (“BOF”) printed advertisements supporting the seven ballot propositions at issue in a 2006 City of Phoenix special bond election, but did not identify its four major funding sources on its advertisements. Linda Bentley and G. Russel Childress (“Bentley”) sued BOF, alleging a violation of A.R.S. § 16-912.01(A). BOF contended that § 16-912.01(H) exempted it from the otherwise applicable disclosure requirements because the advertisements were not “more than fifty percent devoted to one or more ballot propositions or proposed measures on the same subject.” (Emphasis added). The superior court defined “same subject’ to include overlapping and interdependent ballot propositions “which are closely related and which further the same purposes,” and found that under this definition, BOF’s advertisements were subject to the disclosure requirements. BOF appealed.
The Arizona Appeals Court vacated the superior court’s ruling, holding that the bond propositions did not deal with the same subject. The Court reasoned that the common use of the term “same” means “identical,” rather than “closely related,” and that the bond propositions did not relate to identical subject matter. The court also looked to the standard used in analyzing proposed amendments under Article 21, § 1 of the Arizona Constitution and the Single Amendment Rule, to find support for its narrow definition of “same subject.” Finally, the court cited case law specific to bond elections, noting that under these cases, the several parts of a proposed bond measure must have a natural relationship. The bond propositions at issue in the advertisement failed to meet any of these standards, precluding the application of the disclosure provisions to the advertisements.
Judge Kessler authored the opinion; Judges Brown and Winthrop concurred.
Posted by azapp @ Wed, Jan 2, 2008
Simon v. Safeway, Inc. (12/20/2007): Arizona Court of Appeals Division Two Holds That Where a Business Owner Assumes a Duty To Provide Security Services, That Duty Is Nondelegable, and Owner Will Not Be Insulated From Liability For Tortious Acts of Security Personnel Hired As Independent Contractors
Steven Simon brought a personal injury action against Safeway arising out of an altercation with a security guard whom Safeway urged was an independent contractor. Simon alleged that the security guard had physically and sexually assaulted him, that Safeway was vicariously liable because it had a nondelegable duty to employ properly trained security guards, and that Safeway was directly liable because it had negligently failed to train and supervise Howard. After Safeway’s motion for summary judgment was denied, it filed a motion for reconsideration. Simon moved the trial court to defer its ruling so that he could conduct additional discovery. The court treated Simon’s motion as a Rule 56(f) motion and denied it. The trial court granted Safeway’s motion for reconsideration and granted summary judgment in favor of Safeway.
The Arizona Appeals Court reversed, finding first that the lower court abused its discretion in denying Simon’s Rule 56(f) motion. Simon urged in his motion that further discovery was necessary to determine the precise nature of the relationship between Safeway and Howard and requested additional time to conduct three depositions to clarify this issue. The trial court denied the motion because of Simon’s failure to produce any admissible evidence which could defeat the evidence Safeway had already produced. The Appeals Court noted, however, that “this is the precise purpose of Rule 56(f) motions, which expressly permit a trial court to delay ruling on a motion for summary judgment if the party opposing summary judgment states that it cannot, at that time, provide facts to justify its position and informs the court of what information it is looking for, where it thinks the information is, and how it plans on obtaining that information.”
The Court then held that Safeway could be liable for the intentional torts of the security guard even if he was an independent contractor. The trial court held that Safeway could not be vicariously liable because there was no evidence it had attempted to delegate a nondelegable duty. In so holding, the trial court relied on the Restatement (Second) of Torts §§ 409-429, addressing the liability of a principal or employer for injuries caused by an independent contractor. The Appeals Court found this authority inapplicable, however, as “the rule and its exceptions deal primarily with situation in which either an independent contractor is hired to perform physical construction or maintenance on land or premises or the work to be performed is . . . inherently dangerous.” The Appeals Court instead applied the Restatement (Second) of Torts § 344, addressing the duty of a possessor of land to its business invitees. Relying on other Arizona cases finding business owners liable for injuries caused by the activities of third parties on their property, the Appeals Court held that “a business owner may not escape liability . . . merely because the aggrieved party was injured by an independent contractor who was employed to provide services for the business owner on the business premises.”
The Appeals Court further held that even though Safeway had no duty to provide security services, it had voluntarily assumed that duty and “thus created for itself a personal, nondelegable duty to protect its invitees from the intentionally tortious conduct of those with whom it had contracted to maintain a presence and provide security on its premises.”
Judge Vasquez authored the opinion, with Judge Eckerstrom, Presiding Judge, and Judge Espinosa concurring.
Steven Simon brought a personal injury action against Safeway arising out of an altercation with a security guard whom Safeway urged was an independent contractor. Simon alleged that the security guard had physically and sexually assaulted him, that Safeway was vicariously liable because it had a nondelegable duty to employ properly trained security guards, and that Safeway was directly liable because it had negligently failed to train and supervise Howard. After Safeway’s motion for summary judgment was denied, it filed a motion for reconsideration. Simon moved the trial court to defer its ruling so that he could conduct additional discovery. The court treated Simon’s motion as a Rule 56(f) motion and denied it. The trial court granted Safeway’s motion for reconsideration and granted summary judgment in favor of Safeway.
The Arizona Appeals Court reversed, finding first that the lower court abused its discretion in denying Simon’s Rule 56(f) motion. Simon urged in his motion that further discovery was necessary to determine the precise nature of the relationship between Safeway and Howard and requested additional time to conduct three depositions to clarify this issue. The trial court denied the motion because of Simon’s failure to produce any admissible evidence which could defeat the evidence Safeway had already produced. The Appeals Court noted, however, that “this is the precise purpose of Rule 56(f) motions, which expressly permit a trial court to delay ruling on a motion for summary judgment if the party opposing summary judgment states that it cannot, at that time, provide facts to justify its position and informs the court of what information it is looking for, where it thinks the information is, and how it plans on obtaining that information.”
The Court then held that Safeway could be liable for the intentional torts of the security guard even if he was an independent contractor. The trial court held that Safeway could not be vicariously liable because there was no evidence it had attempted to delegate a nondelegable duty. In so holding, the trial court relied on the Restatement (Second) of Torts §§ 409-429, addressing the liability of a principal or employer for injuries caused by an independent contractor. The Appeals Court found this authority inapplicable, however, as “the rule and its exceptions deal primarily with situation in which either an independent contractor is hired to perform physical construction or maintenance on land or premises or the work to be performed is . . . inherently dangerous.” The Appeals Court instead applied the Restatement (Second) of Torts § 344, addressing the duty of a possessor of land to its business invitees. Relying on other Arizona cases finding business owners liable for injuries caused by the activities of third parties on their property, the Appeals Court held that “a business owner may not escape liability . . . merely because the aggrieved party was injured by an independent contractor who was employed to provide services for the business owner on the business premises.”
The Appeals Court further held that even though Safeway had no duty to provide security services, it had voluntarily assumed that duty and “thus created for itself a personal, nondelegable duty to protect its invitees from the intentionally tortious conduct of those with whom it had contracted to maintain a presence and provide security on its premises.”
Judge Vasquez authored the opinion, with Judge Eckerstrom, Presiding Judge, and Judge Espinosa concurring.
Posted by azapp @ Wed, Jan 2, 2008
Henning v. Montecini Hospitality, Inc. (12/20/2007): Arizona Court of Appeals Division Two Holds That Dram Shop Liability Does Not Attach to Corporate Owner That No Longer Exercises Sufficient Control or Supervision Over the Bar.
Maria Henning’s son was injured in an automobile accident. The driver had been served “alcoholic beverages at a bar known as Famous Sam’s. . . .” “On the night of the accident, the bar was owned by appellee Montecini Hospitality, Inc., but operated by Zimbow Enterprises, Inc., a company that was in the process of purchasing the bar.” Henning filed a complaint alleging that “Montecini was liable under dram shop laws and for negligently training its employees to serve alcohol to obviously intoxicated or underage persons.” The trial court granted summary judgment against Ms. Henning because “Montecini no longer exercised sufficient control over the bar or its employees to owe any duty to” Ms. Henning’s injured son. Ms. Henning appealed.
The Arizona Appeals Court affirmed the trial court’s grant of summary judgment in Montecini’s favor. It reasoned that, because Montecini no longer held the liquor license or exercised control or supervision over the bar’s operations, it “owed no duty of care with regard to the sale and service of alcohol at Famous Sam’s on the night of” the accident. With respect to Ms. Henning’s negligent training claim, the Court first noted that “none of the bar employees who served alcohol on the night in question were still employed by Montecini; [m]ost of the handful of Arizona cases that have recognized the tort of negligent hiring, training, or supervision have done so when the tortfeasor remains a current employee of the entity to be held liable.” The court then went on to reject Ms. Henning’s claim because (1) “our jurisprudence has repeatedly determined the scope of a defendant’s duty to third parties with reference to the defendant’s right to control the person, place, or instrumentality causing injury,” (2) “our legislature has specifically considered and limited the class of persons who owe a duty of care in the service of alcohol,” and (3) “[t]o hold that Montecini owed a duty of care to the Hennings under such circumstances would mean that an employer could never escape liability for the actions of a former employee.”
Judge Eckerstrom authored the opinion; Judges Espinoza and Vasquez concurred.
Maria Henning’s son was injured in an automobile accident. The driver had been served “alcoholic beverages at a bar known as Famous Sam’s. . . .” “On the night of the accident, the bar was owned by appellee Montecini Hospitality, Inc., but operated by Zimbow Enterprises, Inc., a company that was in the process of purchasing the bar.” Henning filed a complaint alleging that “Montecini was liable under dram shop laws and for negligently training its employees to serve alcohol to obviously intoxicated or underage persons.” The trial court granted summary judgment against Ms. Henning because “Montecini no longer exercised sufficient control over the bar or its employees to owe any duty to” Ms. Henning’s injured son. Ms. Henning appealed.
The Arizona Appeals Court affirmed the trial court’s grant of summary judgment in Montecini’s favor. It reasoned that, because Montecini no longer held the liquor license or exercised control or supervision over the bar’s operations, it “owed no duty of care with regard to the sale and service of alcohol at Famous Sam’s on the night of” the accident. With respect to Ms. Henning’s negligent training claim, the Court first noted that “none of the bar employees who served alcohol on the night in question were still employed by Montecini; [m]ost of the handful of Arizona cases that have recognized the tort of negligent hiring, training, or supervision have done so when the tortfeasor remains a current employee of the entity to be held liable.” The court then went on to reject Ms. Henning’s claim because (1) “our jurisprudence has repeatedly determined the scope of a defendant’s duty to third parties with reference to the defendant’s right to control the person, place, or instrumentality causing injury,” (2) “our legislature has specifically considered and limited the class of persons who owe a duty of care in the service of alcohol,” and (3) “[t]o hold that Montecini owed a duty of care to the Hennings under such circumstances would mean that an employer could never escape liability for the actions of a former employee.”
Judge Eckerstrom authored the opinion; Judges Espinoza and Vasquez concurred.
Posted by azapp @ Wed, Jan 2, 2008
