Recent Decisions

Negligence:
Duty

The Supreme Court examined the issue of duty in the context of conduct of a third person.  In a negligence case, the issue of whether a duty exists is for the court to decide; it is not a factual matter.  The issue of whether a duty exists is distinct from whether the standard of care has been met.   The Court expressly held that foreseeability is not a factor to be considered by courts when making determinations of whether a duty exists.  The Court further provided that a special or direct relationship is not essential in order for a duty to exist. Public policy may support the recognition of a duty.

Gipson v. Kasey (Ariz., 2007)

Construction Litigation:
Application of Arizona’s Contractor’s Statute
of Repose

The Arizona Court of Appeals has once again dealt with A.R.S.§ 12-522, the contractor’s statute of repose. At issue was whether § 12-522 applies to the claims of general contractors and/or developers against subcontractors. For the most part, the Arizona Court of Appeals answered this question in the affirmative. It found the statute’s language to clearly and unambiguously apply to any claim for breach of contract, breach of express or implied warranty, or breach of express indemnity in the construction context. The Court noted, however, that while an express indemnity claim would be barred by the statute, a common law indemnity claim may not. Further consideration of any common law indemnity claim was not undertaken by the Court, though, because the appellate record did not contain any contracts, and the matter was ultimately remanded to the trial court for further proceedings.

Evans Withycombe, Inc. v. Western Innovations, Inc.(App. 2006)

Wrongful Death:
Definition of “Person” under Wrongful Death Statutes

Plaintiffs brought a medical malpractice lawsuit against a health care provider based on the loss of five frozen human pre-implantation embryos. The appellate court held that a cryopreserved 3-day old fertilized human egg was not a “person” for purposes of recovering under the wrongful death statutes.

Jeter v. Mayo Clinic Arizona (CA1 2005)

Negligent Entrustment:
Focus on Control, Not Ownership

Plaintiffs brought a wrongful death suit against the mother of a man who accidentally shot their son, because the shooter’s mother knew her son had significant mental deficits and abused alcohol. The shooter’s mother argued that she could not be held responsible for entrusting the gun to her son, because she did not own the gun. The appellate court held that a negligent entrustment claim could be brought against the shooter’s mother, because she had control (though not ownership) of the gun, and she allowed her son to maintain possession of it. Ownership of the object at issue is not a prerequisite for recovery under negligent entrustment principles.

Tissicino v. Peterson (CA2 2005)

Negligent Entrustment:
Admissibility of Post-Accident Conduct

Plaintiff in a motor vehicle negligence case brought suit against defendant, who entrusted his vehicle to the at-fault driver. Plaintiff sought to admit evidence that the at-fault driver fled the scene after the accident, but defendant objected and argued that such evidence would be irrelevant and highly prejudicial. The appellate court held that the at-fault driver’s post-accident conduct could be considered by the jury, because that evidence went to the competency of the driver at the time of the accident, which in turn was relevant to establishing the negligent entrustment claim against defendant.

Acuna v. Kroack (CA2 2005)

Municipal Liability:
Police Action and Duty to Third Parties

An off-duty city police detective shot and killed a man in a dispute over the detective’s estranged wife. The surviving widow brought suit against the city and county, both of which supervised the detective, alleging that the municipalities’ negligence was a proximate cause of her husband’s death. The appellate court affirmed summary judgment in favor of the city and county, holding that these municipalities owed no duty to the man who was killed by their off-duty employee.

Wertheim v. Pima County (CA2 2005)

Class Actions:
Standing to Pursue Claims

The Arizona Supreme Court recently addressed the issue of standing in the context of a class action suit and held that a plaintiff in this type of suit must have an individual claim against the defendant before that plaintiff can represent the class. Where plaintiff did not allege a distinct injury to herself, she cannot sue the defendant directly and cannot represent a class, even though some members of the class may have suffered a distinct injury.

Fernandez v. Takata Seat Belts, Inc. (SC 2005)

Bad Faith:
Intentional Interference in Contract between
Insurer and Insured

Insurance company brought suit against a plaintiff’s personal injury lawyer who entered into a Morris Agreement with the insured and then was unsuccessful in proving the insurer's bad faith. The insurance company alleged that the lawyer wrongfully interfered in the contract between the insurer and its insured. The Arizona Supreme Court held that the insurance company could not recover on a claim for intentional interference, because the lawyer did not engage in any improper conduct.

Safeway Ins. v. Guerrero (SC 2005)

If you would like additional information regarding recent Arizona decisions, please contact Todd Rigby at 602.240.6711.