Quiroz v. Alcoa (CA1 9/20/16)

The question is “whether an employer owes a duty of care to the child of an employee who contracts mesothelioma from asbestos brought home on the employee’s work clothes.” The answer is “no.”

Plaintiff lived with his father from 1952 to 1966. He was diagnosed with mesothelioma in 2013 and sued the successor of his father’s employer, alleging negligence. Defendant argued that it owed him no duty; the trial court agreed and granted summary judgment. Plaintiff appealed.

The Court of Appeals affirms.The court recognizes, and in fact insists upon, what our courts often still do not: in Arizona duty is based not, as of old, on the foreseeability of  injury but instead on the relationship between the parties and on public policy.

Plaintiff tried to establish a special relationship using property theories. Restatement (Third) 54 imposes a duty on landowners for “artificial conditions or conduct” posing a risk of harm to persons not on the land. But, this, according to the Restatement, is “special application” of Rest. 7, which imposes a duty on everybody whenever there’s a risk of harm, which effectively writes “duty “ out of the law, and which our Supreme Court has rejected for that reason. Restatement (Second) 371 is similar to 54 but requires that the landowner realize or should realize that his activity poses an unreasonable risk. “Section 371 thus hinges on foreseeability, which is not part of the duty analysis under Arizona law. . . . We thus decline to apply” it. Burns v. Jaquays (1987) discussed liability for asbestos blown from one property to another, which Plaintiff argued also applied to his case, but the court says that Burns was not a negligence or duty opinion.

“A duty of care can also originate in public policy arising from statutes or common law . . . . Absent either, we typically will not find a duty based in public policy.” Plaintiff did not cite statutes or common law other than as mentioned above. He argued instead that he satisfied some additional public-policy factors mentioned in Bloxham (2002) (which in turn had quoted them from an out-of-state case). The court disagrees, being primarily concerned with the huge and unlimited liability involved in giving a claim to anyone who is around anyone who was one anyone else’s property and allegedly came into contact with some substance.

The mesothelioma industry has litigated these “take-home exposure” cases in other jurisdictions, with varying results. Plaintiff of course cites those favorable to the theory. The court reviews them  and concludes that they based duty on foreseeability of harm. “Those courts that do not focus on foreseeability have declined to find a duty.”

(Opinion: Quiroz v. Alcoa)

Premier Physicians Group v. Navarro (8/30/16)

We blogged the opinion of the Court of Appeals here; go there for the facts.

The Supreme Court vacates that opinion and affirms the trial court’s dismissal of the Complaint. “We hold that [33-932A] requires providers to record their liens within thirty days after first providing services.”

Rather than distinguish the hospital-lien statute the Supreme Court uses it as a guide: “Given the clear triggering event established for hospitals [viz., the receipt of “any services”], it would be anomalous to construe [33-932A’s] language as a rolling rather than fixed deadline without the statute expressly saying so.” Having thus rejected the Court of Appeals’ approach the opinion examines the details of the lien statutes to determine legislative intent and give meaning to all words.

(Opinion: Premier Physicians Group v. Navarro)

Falcone Bros. v. City of Tucson (CA2 8/25/16)

It will, we hope, surprise no one that a city can’t make ordinances or contracts that tell the Superior Court what its jurisdiction and rules should be.

Plaintiff contractor had a claim against the City arising out of a construction contract. The contract said that, pursuant to the City’s Procurement Code, Plaintiff could submit its claim to various levels of the City bureaucracy and then, if they denied it, file a special action within thirty days. The City denied Plaintiff’s claim; instead of filing a Special Action Plaintiff filed a Notice of Claim and then sued the City. The City moved to dismiss for lack of subject-matter jurisdiction, which the trial court granted.  Plaintiff appealed.

The Court of Appeals reverses.

First, though, it corrects something it said in an earlier case. Lambert (2009) was another Tucson contractor case; that contractor did file the “special action” and won it; the City appealed. The opinion – in one of those throw-away lines that nobody pays much attention to, apparently not even the court – based its jurisdiction on what’s now 12-2101(A)(1). But that requires that the action have originated in the Superior Court, which – our Supreme Court decided in 1930 – an action to review another tribunal’s decision didn’t. Because of Lambert’s questionable jurisdiction, “we do not rely on that case as precedent.” (Strange that nobody at the court caught the issue then. In any event, this illustrates one reason why rote statements of jurisdiction – or rote statements of anything, and our courts do a lot of things by rote – are a poor idea.)

Plaintiff argued that the City’s scheme violated due process. The opinion mentions the argument but does not address it since it can decide the case more narrowly.

“Only statutes and court rules govern special actions.” “[A] city has no authority to limit the jurisdiction of the state’s courts” unless a statute lets it. The City’s Procurement Code at that time was modeled after the State’s, which says that cities may adopt it. But under the State code claims decisions can ultimately be reviewed under the Administrative Procedures Act, which doesn’t apply to cities. The City didn’t argue that the State Procurement Code, by allowing cities to adopt it, modified the Administrative Procedures Act to allow the same thing (and the opinion mentions the idea mostly to cast doubt on it). What the City did didn’t even conform to the State code, which provides for review at  two separate levels of government. Under the City’s system, at least in this contract (the opinion suggests that it might have been a departure from the norm) final “review” of a contract claim against the City was done by the City bureaucrat who signed the contract.  

The City argued that its procedure was authorized by the statute that says, basically, that claimants must exhaust administrative remedies before asserting a claim against a government entity. But that statute “merely establishes the time for filing a notice of claim,” it “does not give cities authority to establish unlimited administrative-claims processes.”

“At oral argument, the City suggested its administrative review process is enforceable as an arbitration agreement because the parties mutually agreed to be bound by this alternative dispute resolution process.” (Whether or not it’s a great argument it’s the City’s best and the court spends the most time on it. Why was it left for oral argument? The opinion suggests in several places – and perhaps the quoted sentence was intended as one of them – that the appeal was not particularly artful.) “The Procurement Code itself distinguished the process here from arbitration.” And as an arbitration agreement the contract would be unconscionable because the City alone picks the “arbitrator” and because the City could accept, reject, or modify the “arbitrator’s” decision.

The court also mentions, if only to rule out, the possibility that the City’s procedures might have had statutory certiorari in mind. But that’s discretionary and has no time limit; ordinances and contracts purporting to change that are invalid.

The City also argued that under cases such as Hurst (App. 1979) its administrative decision must be deemed “just, reasonable, and lawful” and therefore given conclusive effect absent special action under the contract/ordinance. But those cases involved statutes that specifically permitted the decision and provided for judicial review.

Finally, the City argued that Plaintiff did not exhaust administrative remedies, as required by the statute mentioned above. The court disagrees. Plaintiff did everything required except file the “special action.” Even were the ordinance and contract valid, a special action is not an administrative remedy.

Reversed and remanded for further proceedings – i.e., litigation of the contract claim.

(Opinion: Falcone Bros. v. City of Tucson)