Gersten v. Sun Pain Management (CA1 4/18/17)

An odd lawsuit and a bit of an odd appeal concerning whether using marijuana lets you force your doctor to treat you.

Defendant treated Plaintiff for chronic pain. When Plaintiff got a medical marijuana card Defendant discharged him. Plaintiff sued, arguing that the statute – medical marijuana use “does not . . . otherwise disqualify [the patient] from medical care’ – creates a private right of action. Plaintiff sought not only damages (though one wonders what they would be since he still needed a medical marijuana card) but also a mandatory injunction that Defendant continue to treat him! Defendant moved to dismiss for failure to state a claim.

At least in theory. Although the motion was captioned 12(b)(6) Defendant apparently argued in large part that using marijuana was against his medical advice. He proposed findings of fact to support that even though he hadn’t presented any evidence. Over Plaintiff’s objection, the trial court adopted them and granted the motion on that basis. (Which means that, although we just made fun of his lawsuit, Plaintiff seems to have been the only one in the lower court who knew or cared about rules of evidence or procedure.)

The Court of Appeals affirms. But it first clarifies the issue: “The only issue properly presented . . .  is whether a registered qualifying medical marijuana patient may assert a private cause of action.” The court addresses that issue, disregarding the findings of fact. In other words, it addresses an issue that wasn’t the basis of the trial court’s decision, reversing that court in order to affirm  it..

The court concludes that the statutory language was intended to ensure that medical-marijuana users be treated the same as non-users. It does not regulate the physician-patient relationship and “imposes no affirmative obligation on a physician to treat or continue
treating a . . . patient.”

(Opinion: Gersten v. Sun Pain)

Acri v. State (CA1 3/30/17)

The court explains why an obligation is not a duty.

Homeowners who suffered property damage in the Yarnell fire sued the state for fighting it negligently. The trial court dismissed, holding that the State has no duty. The Court of Appeals affirms.

Plaintiffs first made a public-policy argument. The parties agreed that “prevention or suppression of wildfires . . . is a fundamental public safety obligation.” But “protecting private property against a natural occurrence on public land maintained in natural condition” is, the court feels, an “unworkably broad” duty. The firefighting statute (37-1303) says that fires are fought “in the best interest of the state.” Benefits to private landowners are “incidental to broader public-safety concerns and the best interest of the state” and do not establish a duty to individuals. The court also notes that creating a duty to Plaintiffs would prioritize private lands, limiting the State’s firefighting decisions.

Plaintiffs argued that the State assumed a duty by fighting the fire. Under the Restatement (323) one who voluntarily renders services to another assumes a duty. But the court says that fighting fires, under the statute, is for the benefit of the state, not a service to an individual. The court also says that fighting fires shouldn’t create a duty because that would influence the state to “shield itself from liability” by not fighting them. (Which shows how “fundamental” the state’s “obligations” really are.)

Since the fire started on state land Plaintiffs argued that the state was liable for its spread. The Restatement (Second, Torts, 363) says that possessors are not liable for harm caused outside the land by natural conditions. The court concludes that a lightning-caused fire is a natural condition. Other jurisdictions have disagreed but the court does not discuss their reasoning since that’s not what, the court concluded in the previous paragraph, the Restatement means.

(Opinion: Acri v. State)

American Power Products v. CSK (3/23/17)

On the interplay between 12-341.01 and contractual fee provisions.

The case  arose out of a contract that gave a right to attorney fees to the prevailing party; the phrase was not defined but the contract applied Arizona law. During trial of cross-claims CSK’s was dismissed and the parties apparently agreed that American would get judgment of at least $10,000 (we will use round numbers). That’s what the jury awarded, though American had sought $5 million. CSK had made a $1 million OJ. But the trial court found that American was the successful party and awarded it $775,000 in fees. The Court of Appeals affirmed that. The court reasoned that the contract did not define or limit “prevailing party” and that applying OJ law, which is for contracts now part of the statute, would change the contract, which the statute itself prohibits.

The Supreme Court reverses. “To the extent prior case law broadly precludes application of § 12-341.01 whenever the parties’ contract contains an attorney fee provision, regardless of its content, scope, and other provisions in the contract, we disagree. Rather, § 12-341.01 ‘is inapplicable by its terms if it effectively conflicts with an express contractual provision governing recovery of attorney’s fees.’” “Thus, rather than being completely supplanted by any attorney fee provision in the parties’ contract, the statute — consistent with its plain language — applies to ’any contested action arising out of contract’ to the extent it does not conflict with the contract.”

Justice Timmer dissents, basically agreeing with the Court of Appeals.

Remanded for the trial court to determine fees incurred before the offer (which American gets) and after the offer (which CSK gets).

(Opinion: American Power Products v. CSK)