LATER NOTE: THE ARIZONA SUPREME COURT VACATED THIS OPINION

This court may have assumed too much about “assume.”

Braden was a disabled adult. The DES had placed him in a private nursing home with which it contracted to provide care for its clients. When he died in an accident at the home, his estate sued the State under the Adult Protective Services Act. Under 46-455B a vulnerable adult can sue for injury a person or entity employed to, appointed to, or having assumed a legal duty to provide care for him. The trial court granted the State summary judgment; this opinion reverses.

The State argued that the nursing home, not it, provided the care and was the proper defendant. But the nursing home’s care of Braden was monitored and regulated by the State through a care plan, a case manager, and the usual sort of handicapped/incapacitated child/adult regulations. The court held that this amounted to providing care.

The State next argued that it had not “assumed a legal duty” to provide the care because an assumption must be voluntary and it had not volunteered. The court held that the statute did not require a voluntary assumption and that the common meaning of “assume” did not necessarily require voluntariness. The latter conclusion was based on dictionary definitions of “assume” – all of which involve voluntary acts.

The dissent argued, based on detailed and extensive legislative history, that the State did not mean to assume the duty. This may not be a bad argument, though the majority is surely correct to prefer that the words of statutes mean what they say rather than what convoluted gloss and accretion might suggest. The core of the problem is the dissent’s understandable discomfort with the notion of a mandatory “assumption.” It is possible to “assume” a duty inadvertently but to do so other than by voluntary act gives a  new meaning to the word, one not even the majority was able to find in any dictionary. (And the whole “voluntariness” argument seems odd. Didn’t the State itself pass the statute? Didn’t the State create the regulations and bureaucracy? Hasn’t this court necessarily concluded that the legislature intended that those regs and bureaucrats “provide care?” Can you argue that something you did was involuntarily because you forced yourself to do it?)

In any event, the State also argued that the Act made the State immune. 46-455J requires that a Plaintiff give the state notice of the claim but says that this does not authorize naming the State as a party. The court held that the statute simply means what it says – that giving notice to the State does not itself authorizing suing it – and that an action against the State can be brought if there is an independent legal basis for it.

Finally, the State threw up half a dozen or more policy reasons why the statute shouldn’t apply to it, apparently hoping that at least one of them would stick; none did.

(link to opinion)