Estate of Braden v. State of Arizona (11/30/11)

We blogged the Court of Appeals’ opinion here. The Supreme Court vacates it and affirms the trial court’s grant of summary judgment.

The opinion first makes clear that the issue addressed is only whether the State is liable under A.R.S. § 46-455, not at common law or under the wrongful-death statute. The court avoids the “assume” issue that entertained the Court of Appeals.

The statute allows an action against a “person” or an “enterprise.” The State is not, under the law, a “person,” so the question becomes whether it is an “enterprise.” The statutory definition of “enterprise” includes “legal entity” and the court concedes that Arizona is that. The majority feels, though, that if the legislature had intended to include the State it would specifically have said so. In addition, the statute says “labor union or other legal entity.” Since there’s no comma between “union” and “or,” “legal entity” isn’t an “independent, catch-all category” but means an entity like a labor union.

Justice Bales, joined by Justice Hurwitz, won’t split that hair. He argues that legislative history supports reading “legal entity” to include the State and he also devotes a couple of paragraphs to the use of serial commas. It turns out that the legislature’s style manual follows the newspaper convention of omitting the final comma and that the quoted phrase did have a comma before a 2009 amendment made some technical and grammatical changes. For the dissent, then, the comma issue is meaningless.

The obvious lesson to learn here is the correct use of serial commas. Ignore the newspapers and the legislature. Follow Fowler, Follett, Strunk, White, and the Chicago style manual: use a comma after every member of a series. The only exception is with a name or title. So, it’s “a, b, c, and d” except that “A, B, C and D, attorneys at law” is correct.

(link to opinion)