We blogged the Court of Appeals opinion here. Go there for the facts. The Supreme Court, in a 3-2 decision, vacates that opinion and, reversing its result, affirms the trial court’s summary judgment for the State.

The majority (Pelander, Brutinel, and Timmer) agrees that the Restatement does not apply and declines to extend it. The claim amounts to negligent police investigation, for which earlier cases refused to create a cause of action. “No principled distinction exists between the investigation and notification for purposes of imposing a duty.” Creating a duty would be bad public policy because it would dissuade police from providing available information to families.

The dissent, in addition to extending Restatement 232, believes that the police, when they “undertook to advise” the plaintiffs about their daughter, established a “direct relationship” with them. The majority says that an earlier case had already rejected the “direct relationship” idea.

Mostly, though, the dissent would apply §47 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, which, arguably (the dissent says “squarely”), would create liability. The problem, which the majority points out and the dissent seems to acknowledge, is that the parties never mentioned this section. The majority says that “it would be quite unusual and unwise for this Court to sua sponte [sic] adopt a new Restatement section that would significantly alter our jurisprudence without the benefit of any briefing or argument by the parties or amici.” (The usual suspects appeared as amici but apparently even they didn’t bring it up.) The court cites a concurring opinion by Justice Hurwitz in which he approved of a Restatement section but did not argue for its adoption because the parties hadn’t mentioned it.

The good news is that a majority of the Supreme Court has slapped down the idea that judges are quasi-legislators who can decide cases and make the law of Arizona based on their own research and theories rather than those of litigants who appear before them. The bad news is that two Justices think that they are and can.

(link to opinion)