Arizona Appellate Blog

We blogged the Court of Appeals’ opinion here; go there for the facts. The Supreme Court vacates that opinion but agrees that a zero award in a wrongful-death case is proper. Since wrongful death is not a common-law claim the common-law rule does not apply; the CA2 cases to the contrary are overruled.

Apparently the children acknowledged that in principle but argued that the jury had ignored uncontradicted  evidence of their loving relationship with the deceased. But a jury has great discretion in wrongful death cases and could have discredited the children’s testimony because, for example, of their self-interest. The court also says, though, that “the jury might have accepted the children’s testimony about their loss, but nonetheless decided, given all the circumstances, that awarding no damages was “fair and just.” It seems that the jury’s discretion in wrongful death is just about unlimited.

[LATER EDIT 4/15/12] We’ve been asked about an issue in the CA1 opinion that we didn’t mention here and have realized that we should have.

Specialists argued that Walsh waived the issue by not raising it when the jury returned the verdict. The Court of Appeals said that was “moot” and addressed the substance, which we said “puts the cart before the horse.” The Supreme Court, in a footnote, says that the lower court’s mootness comment was correct. So, who’s right?

Though “moot” is not quite the right word, it is logically true that if a zero verdict is not defective then it need not be treated as such (i.e., Walsh didn’t waive anything by not raising the issue at the time). But our comment intended to refer to a matter not of legal logic but of jurisprudence – the question, addressed later in our Court of Appeals blog, of CA1’s approach to the CA2 precedent. The Supreme Court’s approach is understandable but the same can’t be said of CA1. As we blogged, that court “reaches the issue because it wants to,” not because it should have.

This is especially true since our appellate courts have nowadays made a point of referring to Division Two opinions as merely being those of “another panel” of the Court of Appeals (e.g, here and here; if you think these random, meaningless occurrences then please remember not to buy bridges in Brooklyn or answer Nigerian emails). The fact that there even are two divisions, in other words, is a secondary thing we should ignore. But the Court of Appeals in Walsh blithely threw over two decisions from two panels – four different judges – twenty years apart. We’re shown that some panels are nevertheless more equal than others and that decisions from some aren’t really “real” – no matter how many nor how old they are –  until they’re confirmed by another. That isn’t a legal system – its legal chaos. It would even be better to admit officially – if its true – that CA2 is considered the minor leagues and counts only until someone in the Valley makes the call. That would at least give us some guidance in trying to tell our clients what the law is.

The Court of Appeals already knows how to handle this problem correctly: Follow the precedent but signal that you do so by obligation rather than agreement. And the Supreme Court is not blameless, since it has made the problem worse by not mentioning it in this opinion.

(link to opinion)

This case clarifies the standard of care for common carriers.

Defendant runs the Tucson city buses. Nunez’ decedent (who died before trial of unrelated causes) was a wheelchair-bound bus passenger. The driver strapped her wheelchair down but didn’t seat belt her. When the bus had to stop suddenly, she was thrown forward and injured.

Plaintiff argued that Brown should have been belted. The trial instructed the jury on the classic common-carrier standard: “the highest degree of care practicable under the circumstances.” Professional had asked for a reasonable-care instruction in addition to that, based on Atchison (1939), which decided that that instruction properly limits a common carrier’s duty. From a plaintiff’s verdict, the defendant appealed.

The Court of Appeals affirmed.

The Supreme Court reverses. Atchison is “hardly a model of analytical consistency” but it and later cases demonstrate that Arizona has always been uneasy with the common-carrier standard. Although common carriers have been held to have numerous duties, the standard of care in satisfying them is a separate issue. On that score the Restatements (second and third) require only reasonable care. Passengers entrust their safety to common carriers but they do the same with doctors, for example; there is no basis for imposing a higher standard.

Lowrey came to this conclusion ten years ago, based on a New York decision this opinion also cites, but that was a Division One case that Division Two (which handled this appeal) didn’t think it could follow in the face of other precedent. The Supreme Court agrees that the precedent was not clear.

“We therefore conclude that the appropriate standard of care in negligence actions by passengers against common carriers is the objective, reasonable person standard in traditional negligence law.”

Plaintiff argued that changing the standard would abrogate her cause of action. But clarifying the standard does not abrogate, it merely regulates. And ““Just as the common law is court-made law based upon the circumstances and conditions of the time, so can the common law be changed by the court when conditions and circumstances change.” So, does anti-abrogation apply to courts or not? The court chooses not to nail this down.

Plaintiff also argued that the court’s decision should be prospective only. But the precedent was not “clear and reliable,” especially in view of Lowrey, so that’s not appropriate.

This opinion tells you clearly, repeatedly, and exactly what it means, and why, in a relative minimum of pages. Hurwitz? You guessed it.

(link to opinion)

We blogged the Court of Appeals decision here; go there for the facts. The Supreme Court vacates it and holds that the list of witnesses required by Rule 72(g)(1) “can only be supplemented for good cause under Rule 77(g)(4).”

This opinion is largely technical, analyzing the language of the rules. 72(g)(1) requires a list at the time of appeal and (g)(4) specifically says that the court may allow supplements “for good cause shown.” The Court of Appeals decision “obviates” (g)(1). And “defining discovery to include disclosure of additional witnesses” would permit a party to disclose new witnesses up to the 80-day discovery deadline set by (g)(3), which would nullify (g)(4) for 80 days and could be inconsistent with 26.1 (b)(2) (must seek leave to supplement witnesses and exhibits within 60 days of trial.) It might also let a party disclose new witnesses without giving the other party time to depose them.

We criticized the Court of Appeals decision because it encouraged parties to treat arbitration cavalierly. This opinion at least narrows the window: the parties must round up additional witnesses in a month or so (between first learning of the arbitrator’s decision and having to appeal it) rather than almost four (that month plus 80 days of discovery). That’s not at all impossible but raises practical problems and makes it best to plan ahead.

This is a nice, clear, brief opinion. We’re happy and encouraged – and frankly a bit surprised, based on some of his earlier work – to see this from Justice Brutinel.

(link to opinion)

We reported the Court of Appeals opinion here. The Supreme Court “granted review to consider the scope of qualified immunity in the context of arrests made pursuant to a facially valid but quashed warrant.” The court upholds the summary judgment but vacates the Court of Appeals’ opinion.

It agrees with the Court of Appeals’ minority that “that when . . . law enforcement officers arrest someone pursuant to a warrant and are confronted with readily available information that objectively casts genuine doubt on the warrant’s validity, the officers must undertake further reasonable inquiry.” Although “officers do not violate that standard . . . if further inquiry on the warrant’s validity would be difficult, time-consuming, or would jeopardize officer safety” the court finds that these officers should have done so (not merely that there was a question of fact about it).

But it concludes that this was not clear at the time, so the officers have qualified immunity.

The court took the case to make law about how to serve an arrest warrant. It says “We hold, and clearly establish prospectively” that law. Actually, as the court seems backhandedly to acknowledge, it is dicta  — which is why the Court of Appeals didn’t bother to conclude that analysis – but, the Supreme Court being supreme, calling it a holding suffices to make it such.

The opinion is by Justice Pelander and so proceeds in small steps, each supported by a lengthy – almost stream-of-consciousness – explanation, with detailed discussion of each and every case.

(link to opinion)