Madrid v. Avalon Day Care (CA1 11/18/14)

The question here is whether the Court of Appeals has jurisdiction over a judgment stating that “no further matters remain pending” in the Superior Court, pursuant to Rule 54(c), even though matters remain pending in the Superior Court. If you can’t guess the result then you score no points and forfeit any you may have managed to get so far.

The trial court gave defendants summary judgment on some claims and granted their motion to compel arbitration of the rest. Plaintiff appealed. The judgment contained the Rule 54(c) language. (54(c), you no doubt recall, is the new companion to 54(b).) But an order compelling arbitration isn’t appealable and merely suspends the case. Somebody (the opinion says “Defendants”; at least it does at the moment, what it will say next week we don’t know – these things have a way of changing nowadays) argued that the court had jurisdiction anyway because the judgment contained the language. Without citing cases the court says that “A statement that a judgment is final pursuant to Rule 54(c) when, in fact, claims remain pending does not make a judgment final and appealable.” We agree that no citation should be necessary, though it’s a bit strange not to point out that the 54(b) cases came to the analogous conclusion long ago.

Speaking of which, the next section of the opinion says that this judgment had no 54(b) language so its not appealable under that rule, either. Plaintiff (is what the opinion says this time) asked the court to suspend the appeal so that she could amend the judgment (presumably so that she could appeal just the summary-judgment stuff); the court points out that that’s a possibility under 54(c) but not under 54(b).

The court had already dismissed the appeal by an earlier order; this is the follow-up opinion.

(link to opinion)

Fleming v. State of Arizona (CA2 10/31/14)

This one is of limited interest but Division Two’s forays into civil law are rare enough to be mentioned.

The DPS stopped Plaintiffs’ decedent for DUI; her blood alcohol turned out to be over .20. As she was sitting in the DPS cruiser in the emergency lane of  I10 another vehicle hit it, killing her. Plaintiff sued the other driver and the DPS. Against the DPS Plaintiff lost at trial; the jury found the other driver 75% at fault and the decedent 25%. Plaintiff appealed. The Court of Appeals affirms.

The issue was whether the trial court should have instructed the jury on the qualified-immunity statute, 12-820.02(A)(7). Under it the State has no liability for negligence for the injury of a driver guilty of reckless driving or DUI.

Plaintiff argued that the decedent wasn’t a “driver” at the time of the accident. The Court of Appeals says that a “driver” is a person who drives. If the legislature had intended that the statute apply only to one in the act of driving it could have said so.

The statute requires that the injury be attributable to the violation. Plaintiff argued that if it applied here then it could be used to shield the State whenever a person held for DUI is injured in custody. The opinion says that its for the trial court to decide, depending on the facts, whether a chain of events is too attenuated to warrant the instruction.

It would be “absurd,” according to Plaintiff, if the officers’ liability depended on what violation they had pulled the decedent over for. The court doesn’t think it absurd; the legislature could conclude that the statute discouraged drunk driving.

Plaintiff also argued that the evidence of decedent’s very high alcohol level was irrelevant, inflammatory and cumulative. But reversing on an evidentiary ruling is tough even when the ruling isn’t consistent with the appellate court’s resolution of the principal issue. Plaintiff made things worse by having witnesses testify that, in effect, the decedent wasn’t really too drunk to drive, which the court also uses to justify admitting the evidence.

(link to opinion)

Spirlong v. Browne (CA1 10/28/14)

“Under state statutes, a person ‘keeping’ a dog for more than six consecutive days is considered the dog’s owner and is strictly liable for any injuries and damages caused by the dog. The issue in this appeal is whether ‘keeping’ requires the person to have exercised care, custody, or control of the dog. We hold it does.”

That’s all you really need to know about this one but here’s the rest:

Brown rented rooms in his house to Mayes, who had a dog and was solely responsible for its care. One day when Browne was gone Mayes let the dog out of its crate (lesson: don’t rent rooms to a guy whose dog has to be kept in a crate); Browne’s girlfriend put it in the back yard; it escaped and bit the plaintiffs’ son. They sued Browne, the renter, and the girlfriend; they took default judgment against the renter and girlfriend but Brown had insurance. On cross-motions for summary judgment the trial court held in essence that maintaining the house containing the dog constituted “keeping” it. The case went to trial against Browne; he won. Both sides appealed, thus raising the issue.

The court looks at dictionaries, which tell it that “keep” in the context of an animal “requires a person to exercise care, custody, or control.” This conclusion is also suggested to it by the wording of some licensing statutes. And since dog-bite liability is strict, requiring at least “care, custody, or control” is appropriate and equitable. This does not, however, change the old rule that the head of a household is liable for his kids’ dogs.

So the court affirms without needing to rule on the other issues before it.

(link to opinion)