Boruch v. State (CA1 6/20/17)

The issue here is when government action can be enjoined. The opinion discusses precedent at length and comes to conclusions about the effects of statutes that the Supreme Court will presumably tell us some day are either right or wrong. And then it suggests that torts are lawful.

Plaintiffs allege that the defendant City and State handled the runoff of a severe storm by deliberately overfilling a drainage basin, flooding their properties. They sought an injunction, arguing that Defendants were using their property as an “ad hoc” drainage basin without compensation. Defendants moved to dismiss under 12-1802(4) (can’t enjoin enforcement of a statute) and 1802(6) (can’t enjoin lawful exercise of an office). The trial court dismissed on 1802(6). Plaintiffs appealed.

The Court of Appeals reverses. On appeal the Defendants argued both parts of the statute and the opinion addresses both.

1802(4) doesn’t apply “if the requesting party is seeking to enjoin conduct that goes beyond the officer’s statutory power.” Defendants had cited various statutes allowing them to build and operate storm-water infrastructure. But Plaintiffs, says the court, were not trying to enjoin any of those; “rather, Plaintiffs sought to enjoin Defendants from allegedly exceeding their power by negligently managing the System, knowingly breaching [its] retention capacity, and using their properties as “ad hoc” overflow relief.”

The parties agreed that 1802(6) doesn’t bar injunctions preventing the unlawful exercise of office. But they disagreed about what is “unlawful.” Defendants appear to have argued  basically that only acts done without legal authority are unlawful. Plaintiffs argued that “unlawful” means not simply acting beyond authority – which the opinion assumes Plaintiffs didn’t plead — but also means exercising authority in an unreasonable or arbitrary manner. The court says it agrees with Plaintiffs.

Then it adds in a footnote that Plaintiffs did plead trespass. The point of the footnote is to address Defendants’ argument that the allegation was defective because the Complaint didn’t claim that they intended to flood Plaintiffs. The court points out that intent to do an act known to cause a substantially certain result intends that result. But it doesn’t explain why it bothers with this argument nor what the effect of the trespass allegation is. It already said that Defendants’ acts could be unlawful not because they were alleged to be unauthorized but because they were alleged to be unreasonable or arbitrary. So how does trespass fit in? Isn’t a tort unlawful? Is there a statute that authorized it? If not, how is an allegation of trespass not in itself an allegation of the unlawful exercise of office? If so, what part of what statute gives the government authority to commit a “reasonable”  tort?

(Opinion: Boruch v. State)

Sanders v. Alger (6/1/2017)

We blogged the Court of Appeals opinion here; go there for the facts and issues. The Supreme Court comes to a similar result but vacates Division Two’s  substantive discussion.

The lower court’s opinion centered on the firefighters’ rule; this one centers on the issue of duty. The court primarily wants to change the duty analysis. It feels that Division Two held that there was a duty “because all people have a duty to use reasonable care to avoid causing injury to others.” (The lower court also mentioned other reasons, though that does seem to be its thrust.) “[W]e decline to adopt that . . . rationale, as we need not here decide whether people generally owe a duty of reasonable care to others.”  The court evidently realizes – it would be interesting to know if CA2 did – the significance of saying that “all people have a duty.” Many controversies in the law never go away; they simmer under the surface, ready to be brought up again by accident or design. Whether all people have a duty was the central issue in Palsgraf. The dissent said “yes.” Our courts discarded the majority’s reasons for saying “no” some time ago but the reasons they substituted are, mysteriously, less compelling than those of Justice Cardozo. And so we continue to fight the battles of 1928.

In Arizona duty can arise out of relationships. The court says that patient-caregiver is such a relationship. The court essentially feels that since the caregiver owes the patient a duty there should be a reciprocal duty. It analogizes to the rescue doctrine.

The court also holds that the firefighters rule doesn’t apply, though its reasoning is unfortunately vague. The rule doesn’t apply to caregivers on duty because it doesn’t apply to firefighters off duty. Limiting the rule “comports with” its being constitutional – i.e., not an abrogation of a cause of action – which raises more questions than it answers. And the court refers to the rescue doctrine again, except this time to say that it “arguably” doesn’t apply here.

The court seems concerned about effect of its ruling. Earlier in the opinion it spent a long paragraph explaining there could be defenses to these cases, specifically mentioning standard of care, comparative fault, assumption of risk (even though it says elsewhere that caregivers don’t assume the risk), and superseding cause. And at the end it addresses an issue that it did not grant review on: whether Defendant can get summary judgment. “[W]e note it to underscore that our ruling does not establish liability on Alger’s part.” The duty “is that of a reasonable person under the circumstances, and those circumstances include  . . . physical disabilities and limitations.”

(Opinion: Sanders v. Alger)

Nevens v. AZHH LLC (CA1 5/30/17)

This bedsore case is apparently being reported, though it has the feel of a memorandum. The opinion is a bit light on law and logic and a bit heavy on taking sides.

Plaintiff sued a hospital for bedsores she developed there. She had as experts an internist and a vascular surgeon; the hospital had a vascular surgeon, who argued that the bedsores were from a pre-existing condition. Plaintiff’s strategy turned out to be to call the internist during her case-in-chief, have him testify that substandard care caused the bedsores but defer vascular issues to that specialty, and call the surgeon in rebuttal. But when the time came Defendant objected to that. The trial court agreed and prohibited the surgeon’s testimony. The jury returned a defense verdict. Plaintiff appealed.

The Court of Appeals reverses. It first explains that calling the surgeon didn’t violate the one-expert rule since the first expert hadn’t addressed vascular issues. Plaintiff’s surgeon would have addressed the pre-existing-condition issue raised by Defendant’s expert and if any testimony were duplicative Defendant could have objected to it.

Defendant argued that Plaintiff’s proffer concerning the surgeon’s proposed testimony was defective or incomplete. The court says in passing that “the court had the necessary information before it” but mostly blames Defendant for any defects in the proffer – defects it doesn’t describe and apparently holds didn’t exist – because Defendant waited until it rested its own case to object to Plaintiff’s surgeon. The court does not explain how that interfered with Plaintiff’s ability to make a proffer.

The court then says that Defendant hadn’t objected to Plaintiff’s vascular surgeon in the pretrial statement and that failure to do so may be deemed to waive the objection. The court does not actually say that Defendant waived the objection. If it didn’t, the court doesn’t explain why not. If it did, the court doesn’t explain why it devotes the core of the opinion to an argument that had been waived in the trial court.

The remainder of the opinion – about a third of it – discusses issues that could arise on retrial.

(Opinion: Nevens v. AZHH LLC)