Law v. Verde Valley Medical Center – 11/13/2007

November 16, 2007

Arizona Court of Appeals Division One Holds UCATA Does Not Change Common Law Vicarious Liability; Dismissal of Employee With Prejudice Relieves Employer of Vicarious LiabilityPlaintiff’s Decedent. S

Phillip Law, died after treatment at the Verde Valley Medical Center (“VVMC”). Plaintiff Dee-Ann Law sued VVMC and two doctors who treated the decedent, alleging medical malpractice. Before trial, the trial court dismissed both doctors with prejudice. VVMC moved for summary judgment on its potential vicarious liability for the negligence of the two doctors. Based on DeGraff v. Smith, 62 Ariz. 261, 157 P.2d 341 (1945), VVMC argued dismissal of their employees relieved them from any vicarious liability: “where the master’s liability is based solely on the negligent acts of his servant, a judgment in favor of the servant relieves the master of any liability.” Id. at 265-70, 157 P.2d at 343-45. The trial court granted summary judgment in favor of VVMC, and Plaintiff appealed.

Plaintiff argued on appeal that DeGraff was no longer good law due to the abolition of joint and several liability under the Uniform Contribution Among Tortfeasors Act (“UCATA”). A.R.S. §§ 12-2501 to –2509 (2003). Plaintiff argued that under UCATA, a plaintiff could still sue the employer, even if the court dismissed the employees from the suit, and the employer’s remedy would be to seek contribution from the employees.

The Arizona Appeals Court affirmed the summary judgment. While UCATA did abrogate joint liability for most tortfeasors, the Court did not believe that UCATA changed the common law of vicarious liability. In DeGraff, the Supreme Court of Arizona held that vicarious liability and joint liability are separate doctrines. DeGraff, 62 Ariz. at 264, 157 P.2d at 343. Joint liability applies to those who commit a wrong through concerted action, and “active participation” in the negligence is required. In contrast, vicarious liability makes an employer derivatively liable for the negligence of an employee, even though the employer was not actually negligent. The Supreme Court affirmed this distinction in Wiggs v. City of Phoenix, 198 Ariz. 367, 371, 10 P.3d 625, 629 (2000). Therefore, UCATA’s change regarding joint liability did not change common law vicarious liability, and the decision in DeGraff remains good law.

Judge Gemmill authored the opinion, with Judges Kessler and Timmer concurring